Adoption and Foster Care Analysis and Reporting System, 90524-90597 [2016-29366]

Download as PDF 90524 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations I. Executive Summary per Executive Order 13563 DEPARTMENT OF HEALTH AND HUMAN SERVICES Executive Order 13563 requires that regulations be accessible, consistent, written in plain language, and easy to understand. This means that regulatory preambles for lengthy or complex rules (both proposed and final) must include executive summaries. Below is the executive summary for this AFCARS final rule. Administration for Children and Families 45 CFR Part 1355 RIN 0970–AC47 Adoption and Foster Care Analysis and Reporting System Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF), Department of Health and Human Services (HHS). ACTION: Final rule. AGENCY: (1) Purpose of the AFCARS Final Rule The Social Security Act (the Act) requires that ACF regulate a national data collection system that provides comprehensive demographic and case-specific information on children who are in foster care and adopted. This final rule replaces existing Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations and the appendices to require title IV–E agencies to collect and report data to ACF on children in out-of-home care, and who exit out-of-home care to adoption or legal guardianship, children in out-of-home care who are covered by the Indian Child Welfare Act, and children who are covered by a title IV– E adoption or guardianship assistance agreement. SUMMARY: This rule is effective on January 13, 2017 except for the removal of § 1355.40 (amendatory instruction 3) and Appendices A through E to Part 1355 (amendatory instruction 5), which are effective as of October 1, 2019. FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, Director, Policy Division, Children’s Bureau, 330 C Street, SW., Washington, DC 20201. Email address: cbcomments@ acf.hhs.gov. Deaf and hearing impaired individuals may call the Federal Dual Party Relay Service at 1–800–877–8339 between 8:00 a.m. and 7:00 p.m. Eastern Time. SUPPLEMENTARY INFORMATION: DATES: sradovich on DSK3GMQ082PROD with RULES3 Table of Contents I. Executive Summary per Executive Order 13563 II. Background on AFCARS III. Regulation Development IV. Discussion of Major Changes to the Final Rule V. Implementation Timeframe VI. Section-by-Section Discussion of Comments and Regulatory Provisions VII. Regulatory Impact Analysis VIII. Tribal Consultation Statement VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 (a) The need for the regulatory action and how the action will meet that need: This rule finalizes AFCARS revisions proposed in a Notice of Proposed Rulemaking on February 9, 2015 (80 FR 7132, hereafter referred to as the 2015 NPRM) and in a Supplemental Notice of Proposed Rulemaking on April 7, 2016 (81 FR 20283, hereafter referred to as the 2016 SNPRM). We revised the AFCARS regulations to: (1) Incorporate statutory requirements enacted since 1993; (2) implement the statutory mandate to assess penalties for noncompliant data submissions; (3) enhance the type and quality of information title IV–E agencies report to ACF; and (4) incorporate data elements related to the Indian Child Welfare Act (ICWA). Title IV–E agencies must submit data files on a semi-annual basis to ACF. The regulations specify the reporting population, standards for compliance, and all data elements. The final rule will improve the data reported to ACF by including more comprehensive national data on the status of American Indian/Alaska Native (AI/AN) children for whom ICWA applies and historical data on children in foster care and adds new data elements to better understand a child’s experience in out-of-home care. (b) Legal authority for the final rule: Section 479 of the Act mandates HHS regulate a data collection system for national adoption and foster care data. Section 474(f) of the Act requires HHS to impose penalties for non-compliant AFCARS data. Section 1102 of the Act instructs the Secretary to promulgate regulations necessary for the effective administration of the functions for which HHS is responsible under the Act. (2) Summary of the Major Provisions of the Final Rule (a) Reporting Populations. AFCARS will have two reporting populations: the out-of-home care reporting population and the adoption and guardianship assistance reporting population. The out-of-home care reporting population includes a child of any age who is in PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 foster care under the placement and care responsibility of the title IV–E agency; is receiving title IV–E foster care maintenance payments under a title IV– E agreement; or has run away or whose whereabouts are unknown at the time the title IV–E agency becomes responsible for the child. Once the child enters the reporting population, he or she remains in the reporting population until the title IV–E agency’s responsibility for the child ends or the child’s title IV–E foster care maintenance payment pursuant to a title IV–E agreement ends. The adoption and guardianship assistance reporting population includes a child whose adoption or guardianship was finalized during the report period, and the child’s adoptive parents or guardians have a title IV–E adoption or guardianship assistance agreement with the reporting title IV–E agency. (b) Data Structure. Title IV–E agencies must report AFCARS information in two separate data files: an out-of-home care data file and an adoption and guardianship assistance data file. The out-of-home care data file is a combination of point-in-time information (e.g., demographics) and information on the events in the child’s life over time (e.g., every living arrangement and permanency plan). The adoption and guardianship assistance data file contains data that capture a child’s demographic information, payment information, and certain agreement information. (c) Data Elements. We retained the majority of data elements proposed for the out-of-home care reporting population proposed in the 2015 NPRM, but removed some data elements in response to comments (e.g., concurrent permanency plans) and modified others (e.g., caseworker visits and prior adoption/guardianship). We reduced the adoption and guardianship assistance reporting to include data on the child’s demographics, subsidy amounts, adoption finalization date, and agreement termination date. Also, we retained nearly all of the data elements proposed in the 2016 SNPRM for the out-of-home care reporting population specific to Indian children as defined in ICWA, but removed two data elements: one data element requiring states to report if they provided additional information requested by tribes related to notification and one data element indicating the date when the state title IV–E agency began making active efforts. (d) Compliance and Penalties. The final rule strengthens our ability to hold title IV–E agencies accountable for submitting quality data. A title IV–E E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations agency must meet basic file standards, such as timely data file submissions and more specific data quality standards, such as 10 percent or less of a variety of errors. A title IV–E agency that does not meet the standards upon initial submission of the data will have six months to correct and submit the corrected data. If a title IV–E agency does not meet the standards after corrective action, ACF will apply the penalties required in statute (section 474(f) of the Act). (3) Costs and Benefits. We estimate that costs for the final rule will be approximately $40.7 million. Benefits are that we will have an updated AFCARS regulation for the first time since 1993. In addition to the current uses of the data, the new information will provide more comprehensive information to deepen our understanding of guardianships and to address the unique needs of Indian children as defined in ICWA who are in the state’s placement and care responsibility and who exit to reunification, adoption or who are transferred to the custody of the Indian tribe. This will further our work to draw national statistics and trends about the foster care, adoption, and guardianship populations for assessing the current state of these federal programs and inform national policies with respect to adoption, guardianship, and foster care. sradovich on DSK3GMQ082PROD with RULES3 II. Background on AFCARS AFCARS regulations were originally published in December 1993 in response to the statutory mandate for adoption and foster care data in section 479 of the Act. That mandate is for a data collection system which provides comprehensive national information on: • the demographic characteristics of adopted and foster children and their parents; • the status and characteristics of the foster care population; • the number and characteristics of children entering and exiting foster care, children adopted and children placed in living arrangements outside of the responsible title IV–E agency; • the extent and nature of assistance provided by government programs for foster care and adoption and the characteristics of the children that receive the assistance; and • the number of foster children identified as sex trafficking victims before entering or while in foster care. We use AFCARS data to: • Draw national statistics and trends about the foster care and adoption populations for assessing the current state of foster care and adoption. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 • Complete the annual Child Welfare Outcomes Report to Congress (section 479A of the Act). • Develop our budgets. • Calculate payments for the Adoption and Guardianship Incentive Payments program. • Monitor title IV–E agency compliance with title IV–B and IV–E requirements, including drawing the population sample for title IV–E reviews. • Develop appropriate national policies with respect to adoption and foster care; and • Address the unique needs of Indian children as defined by ICWA in foster care or who exit to adoption, and their families. III. Regulation Development Proposed Rules: We published a NPRM on January 11, 2008 to revise AFCARS (73 FR 2082). We did not finalize that NPRM due to the President signing into law the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Public Law 110– 351) that substantially changed the title IV–E program. Rather, we analyzed the comments and sought additional comments through a Federal Register Notice (75 FR 43187, issued July 23, 2010). In September 2014, the President signed into law the Preventing Sex Trafficking and Strengthening Families Act (Public Law 113–183) that modified the AFCARS requirements in section 479 of the Act, the annual Child Welfare Outcomes Report in section 479A of the Act, and added a requirement for HHS to submit several reports to Congress requiring the collection and reporting of information on victims of sex trafficking, children in foster care who are pregnant or parenting, and children in foster care in non-foster family settings and the services they receive. We published the 2015 NPRM proposing to modify the requirements for title IV–E agencies to collect and report data to ACF on children in outof-home care and who were adopted or in a legal guardianship with a title IV– E adoption or guardianship assistance agreement. In April 2015, we announced our intent to publish a supplemental NPRM that would propose adding ICWA-related data elements to AFCARS (80 FR 17713, issued April 2, 2015). ICWA establishes minimum federal standards for the removal of Indian children from their families and the placement of such children in foster care or adoptive placements that reflect the unique values of Indian culture. In cooperation with the Children’s Bureau, the National Association of Public Child Welfare PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 90525 Administrators (NAPCWA), an affiliate of the American Public Human Services Association (APHSA) hosted a conference call with state members of NAPCWA (i.e., representatives of state child welfare agencies) on April 27, 2015. The purpose of the call was to obtain input from state members on what data state title IV–E agencies currently collect regarding ICWA and what they believed were the most important information title IV–E agencies should report in AFCARS related to ICWA. In addition, the Children’s Bureau held a tribal consultation via conference call on May 1, 2015 to obtain input from tribal leaders on proposed AFCARS data elements related to ICWA. Comments were solicited during the call to determine essential data elements that title IV–E agencies should report to AFCARS. As part of on-going intra- and inter-agency collaboration, ACF consulted with federal experts on whether data exists, or not, and its utility in understanding the well-being of Indian children, youth, and families. ACF also consulted with federal partners at the Department of Justice (DOJ) and the Bureau of Indian Affairs (BIA) at the Department of the Interior on the ICWA statutory requirements in 25 U.S.C 1901 et seq., the Department of Interior, Bureau of Indian Affairs Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (80 FR 10146 issued February 25, 2015, hereafter referred to as BIA’s Guidelines), and Notice of Proposed Rulemaking to Implement Regulations for State Courts and Agencies in Indian Child Custody Proceedings (80 FR 14880, issued March 20, 2015). After considering all of the aforementioned input, the 2016 SNPRM was published on April 7, 2016 (81 FR 20283) and proposed to require that state title IV–E agencies collect and report certain information related to ICWA for Indian children in the AFCARS out-of-home care reporting population. 2015 NPRM Comments: In response to the 2015 NPRM, we received 126 comment letters from states, Indian tribes and organizations representing tribal interests, national advocacy/ public interests groups, universities, and private citizens. Many commenters supported many of the revisions we proposed for reporting historical data and collecting new information on topics such as caseworker visits, transition plans, and siblings. Commenters suggested including data elements related to ICWA. However, some commenters expressed concern E:\FR\FM\14DER3.SGM 14DER3 90526 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations with the burden of modifying state systems to report the additional data elements. Suggestions included that we pare down the overall number of data elements to a core set that collects essential information. Commenters suggested that some of the proposed data elements were better suited in case narratives or case reviews rather than AFCARS. We expand on these comments in the section-by-section discussion. 2016 SNPRM Comments: In response to the 2016 SNPRM, we received 91 comment letters from states, Indian tribes and organizations representing tribal interests, national child welfare advocacy/public interest groups, universities, and private citizens. Many commenters supported collecting ICWA-related data in AFCARS and stated that it will better inform practice for Indian children as defined in ICWA. However, many commenters also expressed concerns with the burden of modifying state data systems to collect and report new and additional data elements. They suggested that we pare down the overall number of data elements to a core set that collects essential information related to ICWA. Commenters stated that much of the proposed data elements were better suited for case reviews rather than AFCARS because much of the information is currently in case narratives. We expand on these comments in the section-by-section discussion. sradovich on DSK3GMQ082PROD with RULES3 IV. Discussion of Major Changes to the Final Rule Discussed below are the major changes and provisions of the final rule. A. Changes to the Out-of-Home Care Data File We received many comments in response to the AFCARS out-of-home care data elements proposed in the 2015 NPRM and 2016 SNPRM that helped us strengthen, clarify, and streamline the data elements. In general, states and the national organization that represents state child welfare agencies believe there are data elements in both the 2015 NPRM and the 2016 SNPRM that exceed the scope of the requirements of recent child welfare legislation and they recommend that ACF review each proposed data element and focus on essential data elements that can be reasonably collected and compared across states. Some states expressed concerns about the proposed data elements, implementation period, penalties, timeframe for submission, limited access to court records, and associated burden. They suggested VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 paring down the number of data elements, providing adequate timeline and structure to implement changes including data exchanges with courts, and requested additional resources to meet the burden of implementation and training staff. In addition, some states expressed concerns that the rule includes data elements that attempt to capture qualitative and quantitative information that is not easily reducible to a single data field, and are more appropriate for a qualitative case review rather than an administrative data collection. We made the following major changes in the out-of-home care data file based on public comments: Citizenship and Immigration Throughout the final rule, we removed proposed data elements that required agencies to report whether or not the child or parent was born in the United States. State title IV–E agencies and a national organization representing state child welfare agencies were overwhelmingly opposed to agencies being required to report this in AFCARS, commenting that the data elements are not relevant to their work at the state and local level and could adversely impact the worker’s relationship with families. However, in response to suggestions to add data elements related to parental immigration detainment or deportation, we included these as response options in the Child and family circumstances at removal data element in section 1355.43(d). These changes are explained in further detail in the section-bysection discussion. Sexual Orientation We requested public input in the 2015 NPRM on whether AFCARS should include information on whether a child identifies as lesbian, gay, bisexual, transgender, or questioning (LGBTQ). We received comments both in favor and against title IV–E agencies collecting and reporting this information to AFCARS but we were convinced to include data elements in the final rule related to the sexual orientation of the child (section 1355.44(b)), the child’s foster parent(s) (section 1355.44(e)), and adoptive parent(s) or legal guardian(s) (sections 1355.44(h)). Our goal in including this information is that the data will assist title IV–E agencies to help meet the needs of LGBTQ youth in foster care. Information on sexual orientation should be obtained and maintained in a manner that reflects respectful treatment, sensitivity, and confidentiality. Several state and county agencies, advocacy organizations and PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 human rights organizations have developed guidance and recommended practices for how to promote these conditions in serving LGBT youth in adoption, foster care and out-of-home placement settings. ACF provides state and tribal resources for Working With LGBTQ Youth and Families at the Child Welfare Information Gateway. The following links are provided as general examples of such guidance (Minnesota and California examples). ACF will provide technical assistance to agencies on collecting this information. We also added, based on comments, whether there is family conflict related to the child’s sexual orientation, gender identify, or gender expression as a Child and family circumstance at removal reported when a child is removed from home in section 1355.44(d). Child Financial and Medical Assistance We proposed in the 2015 NPRM to collect financial and medical assistance information that support the child in two separate data elements: (1) Identify the source of federal assistance and total per diem payment amount for each of the child’s living arrangements from a list seven types of assistance; and (2) identify whether the child received specific non-title IV–E federal or state/ tribal financial and medical assistance during the report period. We received many comments expressing concern about the increased burden in particular to report specific federal assistance per diem payment amounts for every living arrangement. In response to these concerns, we were persuaded to revise the data elements by removing the data element related to per diem payment amounts for every living arrangement and consolidated the response options from both data elements into one data element. As a result, in section 1355.44(b) of the final rule, we require title IV–E agencies to report if the child received any of 13 types of state/tribal and federal financial and medical assistance during the report period. Health, Behavioral or Mental Health Conditions and IDEA Qualifying Disability We proposed in the 2015 NPRM to require agencies to report on a child’s health, behavior or mental health conditions in one data element and the child’s qualifying disability as defined by the Individuals with Disabilities Education Act (IDEA) if he/she has an Individualized Education Program (IEP) or Individual Family Service Plan (IFSP) in another. We received many comments from state title IV–E agencies that the response options for both data elements were very similar conditions, E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 the distinction confusing, and could lead to unreliable data. We were persuaded by the commenters to streamline and consolidate the two data elements and as a result removed the specific requirement for agencies to report a child’s qualifying disability, and modified and combined the response options into one data element called health, behavioral or mental health conditions with 11 conditions for agency to report on the child (section 1355.43(b)). This will provide us with better data on the child’s health characteristics and meets the federal requirement to collect this information per section 479A(a)(7)(A)(v) of the Act regarding reporting clinically diagnosed conditions for certain children in foster care. Siblings We revised how we will collect information on siblings in the out-ofhome care data file in the final rule. In the 2015 NPRM, we proposed to collect sibling information in both the out-ofhome care data file and the title IV–E adoption and guardianship assistance data file: • The number of siblings of the child who are in out-of-home care and the child record numbers for those siblings, those siblings who are placed together in out-of-home care and those not placed together; and • the number of siblings who exited out-of-home care to adoption or guardianship and the child record numbers of those siblings who are living with the child and the child record numbers of those not living with the child. Commenters generally agreed that information about siblings is important to collect, but had concerns that our proposal was too complicated and would not yield reliable information because there are many and varied reasons for siblings not being placed together. Commenters thought the proposal did not take into account the complexity of what may constitute a family in the eyes of a child, and this information is best captured qualitatively. We carefully reviewed the comments and recommendations. While we understand the concerns and issues the commenters raised that may make it difficult to report sibling information, we determined that we must continue to require agencies to report information about sibling placements. As we noted in the preamble to the 2015 NPRM, section 471(a)(31)(A) of the Act requires title IV–E agencies to make reasonable efforts to place siblings removed from their home in the same foster care, kinship guardianship or adoptive VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 placement, unless such a placement is contrary to the safety or well-being of any of the siblings. While we retained the core requirement for agencies to report on whether siblings are placed together in foster care and when siblings exit to adoption, we simplified reporting. We removed the data elements requiring the agency to report the sibling’s child record numbers which was one of the concerns raised by commenters. Thus, the agency reports in the out-of-home care data file the following: • The number of siblings of the child that are in foster care, and the number of siblings in the same living arrangement as the child on the last day of the report period (section 1355.42(b)). • The number of siblings of the child who are in the same adoptive or guardianship home as the child, if the child exited foster care to adoption or guardianship (section 1355.44(h)). Data Elements Related to ICWA 2016 SNPRM Rationale: The Government Accountability Office (GAO) reported in 2005 that there is no national data on children subject to ICWA by which to assess the experiences of AI/AN children in child welfare systems or with which to target guidance and assistance to states (GAO– 05–290 Indian Child Welfare Act). Further, in response to comments on the 2015 NPRM and a reevaluation of our data collection authority, we were persuaded to propose that state title IV– E agencies report ICWA-related data. We proposed the data elements in the 2016 SNPRM as paragraph (i) to the proposed section 1355.43 (from the 2015 NPRM) after considering input from comments and federal agency experts. Overall, tribes, organizations, states, and private citizens supported our mission to collect additional information related to Indian children as defined in ICWA. Moreover, some states, tribes, national organizations and federal agencies have stated that ICWA is the ‘‘gold standard’’ of child welfare practice and its implementation and associated data collection will likely help to inform efforts to improve outcomes for all children and families in state child welfare systems. Comments: Generally, tribes, organizations representing tribal interests, national child welfare advocacy organizations, and private citizens fully support the overall goal and purpose of including ICWA-related data in AFCARS, and the data elements as proposed in the 2016 SNPRM. These commenters believe that collecting ICWA-related data in AFCARS will: PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 90527 1. provide data on core ICWA requirements such as ‘‘active efforts’’ and placement preferences, as well as assess how the child welfare system is working for Indian children as defined by ICWA, families and communities; 2. facilitate access to culturallyappropriate services to extended families and other tribal members who can serve as resources and high quality placements for tribal children; 3. help address and reduce the disproportionality of AI/AN children in foster care; and 4. provide avenues for collaboration between states and tribes that are more meaningful and outcome driven, including improved policy development, technical assistance, training and resource allocation as a result of having reliable data available. Overall, tribal commenters and national child welfare advocacy organizations believe that collecting ICWA-related data in AFCARS is a step in the right direction to ensure that Indian families will be kept together when possible, and will help prevent AI/AN children from entering the foster care system. Many of the tribal commenters that supported the 2016 SNPRM also recommended extensive training for title IV–E agencies and court personnel in order to ensure accurate and reliable data reporting. Some commenters recommended additional data elements. Commenters from some states and the national organization representing state child welfare agencies generally supported the overall goal and purpose of including ICWA-related data in AFCARS. One state commented that reporting national data related to ICWA was needed and long over-due. Some states reiterated concerns expressed in their comments to the NPRM related to the implementation period, penalties, timeline for submission, limited access to court records and the associated burden. Those states made similar recommendations to reduce the number of elements, provide an adequate implementation timeline, and requested additional resources to implement and train staff. As with their comments to the NPRM, some states identified proposed ICWA-related data elements that they believe would not be easily captured in a single data field and may therefore be better assessed through qualitative case file review. Some states also suggested that we clarify the language of the ICWA-related data elements and definitions in relation to BIA’s regulations in order to increase national uniformity of practice and data collection. Several states said that they have a small number of AI/AN children E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90528 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations in their AFCARS reporting population and they requested that federal funding be made available to the fullest extent possible to help prepare for the lowoccurring event of reporting the ICWArelated information. Final Rule: We understand the burden issues that states raised in collecting and reporting additional data to AFCARS; however, we have determined in the final rule that the benefits outweigh the burden associated with collecting and reporting the additional data. Most states commented positively about improving data on Indian children as defined in ICWA. As we stated in the 2016 SNPRM, it is unclear how well state title IV–E agencies implement ICWA’s requirements because of the lack of data related to ICWA. Even in states with large AI/AN populations, there may be confusion regarding how and when to apply ICWA. We retained most of the data elements proposed in the 2016 SNPRM with some minor revisions to be consistent with the final rule published by the Department of the Interior, Bureau of Indian Affairs that addresses requirements for state courts regarding ICWA (81 FR 38778). We modified our final AFCARS rule requiring state title IV–E agencies to report whether active efforts were made prior to removal and prior to a termination of parental rights (TPR), and to identify which active efforts were made prior to removal and during the child’s out-of-home care episode. We agree with commenters’ suggestions that we include information when a state title IV–E agency inquired of extended family if the child is an Indian child because extended family may have information that parents do not know. We removed the requirement for states to report the date on which the state title IV–E agency began making active efforts in order to coordinate with the BIA’s regulation clarifying that ICWA applies when the state title IV–E agency knows or has reason to know that a child is an Indian child as defined in ICWA. We removed the data element requiring states to report whether the state provided additional information the tribe requested related to notification. We explain this more in the section-by-section discussion. We determined the best approach for the final rule is to integrate the data elements proposed in the 2016 SNPRM as section 1355.43(i) into applicable sections of this final rule at section 1355.44. These sections are: Child information (section 1355.44(b)); Parent or legal guardian information (section 1355.44(c)); Removal information (section 1355.44(d)); Living arrangement VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 and provider information (section 1355.44(e)); Permanency planning (section 1355.44(f)); General exit information (section 1355.44(g)); and Exit to adoption and guardianship information (section 1355.44(h)). On June 14, 2016, BIA published the final rule, Indian Child Welfare Act Proceedings (81 FR 38778). BIA’s final rule requires fewer court orders than its proposed rule and increases flexibility for recording court decisions. In response to state and tribal comments suggesting congruence with the BIA’s final rule, we revised data elements in this final rule as appropriate to reflect the BIA’s regulations including removing requirements that state title IV–E agencies report certain information only from ICWA-specific court orders. These changes should allow the state title IV–E agency more flexibility, alleviate some of the burden and other concerns identified by states, help target technical assistance to increase state title IV–E agency communication and coordination with courts, and improve practice and national data on all children who are in foster care. B. Revisions to Data on Children Who Are Adopted and Children Who Are Placed in Legal Guardianships 2015 NPRM Proposal and Rationale: In the 2015 NPRM, we proposed a new data file to collect information on children who have title IV–E adoption or guardianship assistance agreements and several new out-of-home care data elements to collect information on children who exit out-of-home care to adoption or legal guardianship. Title IV–E Adoption and Guardianship Assistance data file: We proposed in the 2015 NPRM to require the title IV–E agency to report ongoing information on children under a title IV–E adoption and guardianship assistance agreement (called the title IV–E adoption and guardianship assistance data file), regardless of whether the agreement is for an ongoing subsidy, nonrecurring costs or in the case of a title IV–E finalized adoption, a Medicaid-only subsidy. The information included: demographics on each child, finalization/legalization dates, jurisdiction of the adoption, adoption or guardianship placing agency, subsidy and nonrecurring costs amounts, and sibling information. Section 1355.44(h) Exit to adoption and guardianship information: We also proposed data elements in the out-ofhome care data file related to all children who exit out-of-home care to adoption or legal guardianship. This included children who have a title IV– E adoption or guardianship assistance PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 agreement, with or without a subsidy, and those who do not have either an agreement or subsidy. We proposed to require that the title IV–E agency report information on children who exit out-ofhome care to adoption or legal guardianship, including: Demographic information (race, ethnicity, date of birth) on the adoptive parents/legal guardians; child’s relationship to the adoptive parents/legal guardians; whether the child was placed within or outside of the state or tribal service area, or into another country for adoption or legal guardianship, and if so the name of the jurisdiction; and the agency that placed the child. Comments: We received public comments on the overall proposal to collect information on children under title IV–E adoption and guardianship agreements, comments on individual data elements, and suggestions for expanding the information to be reported. A national organization representing state child welfare agencies requested that we remove the title IV– E adoption and guardianship assistance data file from the final rule and in general recommended that all AFCARS data elements be clearly defined and structured to provide accurate, reliable, and valid information. Additional comments and concerns raised by the organization were that: some state laws and/or policies regarding the oversight allowed with an adoptive family restricts the ongoing collection and use of information about these children; children under guardianship and adoption assistance agreements do not have open service cases even when there is a subsidy; many states capture the financial information regarding title IV–E adoption and guardianship subsidies in other systems; and many states would be required to make a significant changes to their application and report programs. In addition, the organization specifically noted that requiring agencies to report on an optional program for a child under a title IV–E guardianship assistance agreement reaches beyond our statutory authority. Several others, including states, agreed with the recommendation to remove the title IV–E adoption and guardianship assistance data file, raising additional concerns about the burden on workers. Some national advocacy/ public interest groups representing children and adoption agency interests supported the collection of information on children under title IV–E assistance agreements. Some of these groups suggested including data elements on children with state guardianship agreements and additional historical E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations data elements. We also received specific comments on the data elements in section 1355.44(h) that we address in the section-by section discussion of the preamble related to gender of the adoptive parents and legal guardians, sexual orientation of the adoptive parents and legal guardians, the definition of kin, and information on siblings. We carefully reviewed all of the comments and reconsidered our essential needs at the federal level for data on children who are adopted and in legal guardianships, and revised the final rule as described below. Final Rule: Adoption Assistance data file: We retained the adoption and guardianship assistance reporting population as proposed, given the growing dominance of this population as a component of the title IV–E beneficiary population. However, we reduced the data elements to those that are essential for our needs in understanding this population of children who are receiving Federal benefits: a child’s basic demographic information, subsidy amounts, and adoption and guardianship finalization and subsidy termination dates. As specified in the NPRM, this information will be used to discern changing circumstances and fluctuations in title IV–E payment amounts, responding to questions raised by Congress, and for budgetary planning and projection purposes. We removed the requirements for agencies to report non-recurring costs amounts as we do not have a specified need for this case level information and agencies report this type of information in the aggregate. We reduced reporting on siblings which is only reported in the out-of-home care file, as is the adoption jurisdiction and adoption reporting agency. Final Rule: Section 1355.44(h) Exit to adoption and guardianship information: We determined that it was essential for us to have more robust information about all children who exit state or tribal foster care to adoption or legal guardianship, which is found in the outof-home care data file at section 1355.44(h). We added and revised data elements based on commenters’ suggestions to ensure we have a comprehensive set of information about children who exit foster care to adoption and guardianship. The most notable data elements we added to the out-of-home care data file for children who exit to adoption or guardianship are: • Sexual orientation of the adoptive parent(s) or legal guardian(s); • Tribal membership of the adoptive parent(s) or legal guardian(s); VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 • The assistance agreement type (adoption assistance agreement, state/ tribal adoption assistance agreement, adoption-title IV–E agreement, nonrecurring expenses only; Medicaid only; title IV–E guardianship assistance agreement, state/tribal guardianship assistance agreement, or no agreement); and • The number of siblings of the child who are in the same adoptive or guardianship home as the child who exited out-of-home care to adoption or guardianship. C. Report Periods and Deadlines In section 1355.43(a) Report periods and deadlines, we modified the final rule to allow title IV–E agencies up to 45 days after the end of the report period to transmit the AFCARS data files. V. Implementation Timeframe We are providing two fiscal years for title IV–E agencies to comply with sections 1355.41 through 1355.47. State and tribal title IV–E agencies must continue to report data related to children in foster care and who have been adopted with title IV–E agency involvement to ACF in accordance with section 1355.40 and the appendix to part 1355 during the implementation period. It is essential for agencies to continue to report AFCARS data to ACF without interruption because AFCARS data is used for various reports, planning and monitoring, and to make the Adoption and Guardianship Incentive awards. We received comments from many states on the implementation timeframe and several offered suggestions. State commenters to both the 2015 NPRM and the 2016 SNPRM indicated they would need sufficient time to make changes to their electronic case management systems to collect new information. Several state title IV–E agencies and a national organization representing state title IV–E agencies indicated that implementing the ICWA-related data elements proposed in the 2016 SNPRM in addition to the elements proposed in the 2015 NPRM would require more time than one year and two states indicated a need for two to three years. Several state title IV–E agencies indicated that ICWA-related information is documented in case files and in narrative formats. Additionally, several state title IV–E agencies noted that collecting the information from courts would impact their implementation timeframe because the court information systems do not always contain the information proposed in the 2016 SNPRM or because there is no data PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 90529 exchange interface between the court and state title IV–E agency’s case management system. Commenters to the 2015 NPRM also suggested that this final rule not be implemented until after Round 3 of the Child and Family Services Reviews (CFSR). State title IV–E agencies and the national organization representing state title IV–E agencies recommended either a tiered or a phased-in approach to compliance with the AFCARS requirements and penalties. Several of those commenters suggested that we allow agencies additional time to implement the changes proposed in the 2016 SNPRM regarding ICWA data elements. We understand states’ concerns about the system changes that are needed since this final rule will implement the statutory AFCARS penalties. However, we determined that a two federal fiscal year period is sufficient for states to implement all changes for the AFCARS final rule. We are not providing a phasein period for the ICWA-related data elements. As we noted in the 2016 SNPRM, we are issuing one final rule on AFCARS and we considered all comments on the 2015 NPRM and the 2016 SNPRM. VI. Section-by-Section Discussion of Comments and Regulatory Provisions Section 1355.40 Foster Care and Adoption Data Collection In this section, we modified the requirements in the current section 1355.40 to require title IV–E agencies to continue to submit AFCARS data during the implementation timeframe. We must keep the current AFCARS regulations at section 1355.40 and the appendices to part 1355 until the dates listed in the DATES section of this rule. This means that title IV–E agencies must continue to report AFCARS data in the same manner they do currently until the implementation date of this final rule as discussed in section V of this final rule. Section 1355.41 Scope of the Adoption and Foster Care Analysis and Reporting System In this section, we set forth the scope of AFCARS. In paragraph (a), we specify that state and tribal title IV–E agencies must collect and report AFCARS data, unless it is indicated for state title IV–E agencies only. In paragraph (b), we specify that title IV–E agencies must submit the data to ACF on a semi-annual basis as required in section 1355.43 in a format according to ACF’s specifications. In paragraph (c)(1), we clarified that the terms in section 1355.41 through E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90530 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations 1355.47 are defined as they appear in 45 CFR 1355.20, except that for purposes of specified data elements related to the Indian Child Welfare Act of 1978 (ICWA), terms are defined as they appear in 25 CFR 23.2 and 25 U.S.C. 1903. This is similar to paragraph (i)(1) as proposed in the 2016 SNPRM and incorporates the definitions recently promulgated in BIA’s regulations at 25 CFR 23.2. In paragraph (c)(2), we clarified for state title IV–E agencies that in cases where ICWA applies, the term ‘‘legal guardian’’ includes an Indian custodian as defined in ICWA at 25 U.S.C. 1903. These data elements are in sections 1355.44(c)(1), (c)(2), (d)(4), and (d)(5). We understand that there are instances when ICWA applies where Indian custodians may have legal responsibility for the child. Since we are integrating the ICWA-related data elements into select sections of this regulation, we want to take this opportunity to clarify that in the instances where ICWA applies and an Indian custodian may have legal responsibility of the child who is now in out-of-home care, the term ‘‘legal guardian’’ includes an Indian custodian. Comment: A few commenters suggested additional definitions, such as ‘‘voluntary’’ placement, ‘‘ICWA eligible child,’’ and ‘‘reactivation’’ of children who have multiple removals for the same reasons, and to expand the definition of tribe to distinguish between federally recognized, nonfederally recognized, and historic/ aboriginal tribes. Response: We did not add a definition of ‘‘voluntary’’ placement because the term is already defined by section 472(f) of the Act. We did not define ‘‘reactivation’’ because it is not a term used in these regulations. We did not specifically define ‘‘ICWA eligible child’’ in this regulation, but we did include by reference definitions in the BIA’s ICWA regulation at 25 CFR 23.2 so if the BIA amends the definition of children to whom ICWA applies, it will automatically be changed for the purpose of these regulations rather than requiring ACF to issue another regulatory action. Since we integrated the ICWA-related data elements into other sections of the final rule we no longer have a list of applicable definitions pertaining to the ICWArelated data elements. Rather, section 1355.41(c)(1) specifies that terms in sections 1355.41 through 1355.47 are defined as they appear in 45 CFR 1355.20, except that for purposes of data elements related to ICWA, terms that appear in sections 1344.44(b)(3) through (b)(8), (c)(3), (c)(4), (c)(6), (c)(7), (d)(3), VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 (e)(8) through (e)(11), (f)(10), and (h)(20) through (h)(23) are defined as they appear in 25 CFR 23.2 and 25 U.S.C. 1903. This means that the ICWA-related data elements will follow either BIA regulations as they appear in 25 CFR 23.2 or the statute at 25 U.S.C. 1903. In paragraph (c)(2), we clarified for state title IV–E agencies that in cases where ICWA applies, the term ‘‘legal guardian’’ includes an Indian custodian as defined in ICWA at 25 U.S.C. 1903. These data elements are in sections 1355.44(c)(1), (c)(2), (d)(4), and (d)(5). Section 1355.42 Reporting Populations In this section, we define the reporting populations for the AFCARS out-of-home care and adoption and guardianship assistance data files. Section 1355.42(a) Out-of-Home Care Reporting Population In paragraph (a), we define and clarify the out-of-home care reporting population. Consistent with current AFCARS, the child enters the out-ofhome care reporting population when the child’s first placement meets the definition of foster care in section 1355.20. A title IV–E agency must report a child of any age who is in out-of-home care for more than 24 hours. Comment: Several state title IV–E agencies, a national organization representing state child welfare agencies and other commenters supported the out-of-home care reporting population. However, several states and others expressed confusion over who is included in this population, particularly juvenile justice youth, runaway and homeless youth, youth on a trial home visit and children who reenter care. Response: We take this opportunity to clarify the reporting population for outof-home care. Overall, the out-of-home care reporting population includes a child of any age who is in foster care as defined in 1355.20 for longer than 24 hours until the title IV–E agency no longer has placement and care responsibility. The out-of-home care reporting population includes a child under the title IV–E agency’s placement and care who: • Has run away or whose whereabouts are unknown at the time the title IV–E agency becomes responsible for the child, until the title IV–E agency’s responsibility for placement and care ends; • is placed into foster care after a non-foster care setting, until the title IV– E agency’s placement and care responsibility ends; • is placed at home, including a child on a trial discharge or trial home visit, PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 until the title IV–E agency’s placement and care responsibility ends; • is placed from a foster care placement into a non-foster care setting, until the title IV–E agency’s placement and care responsibility ends; • is age 18 and older, including those in a supervised independent living setting, until the title IV–E agency’s placement and care responsibility ends. The out-of-home care reporting population also includes a child who is under the placement and care responsibility of another public agency that has an agreement with the title IV– E agency pursuant to section 472(a)(2)(B) of the Act, or an Indian tribe, tribal organization or consortium with which the title IV–E agency has an agreement, and, on whose behalf title IV–E foster care maintenance payments are made until title IV–E foster care maintenance payments cease to be made on behalf of the child. We specifically note that children placed pursuant to title IV–E agreements are reported in the out-of-home care reporting population only if the child is receiving a title IV– E foster care maintenance payment under the title IV–E agreement. We added the phrase ‘‘for more than 24 hours’’ to the regulation so that it now reads ‘‘A title IV–E agency must report a child of any age who is in out-of-home care for more than 24 hours.’’ We want to be clear how title IV–E agencies must report children in the out-of-home care reporting population, consistent with current AFCARS regulations, found in the Appendix to section 1355. Since we removed the appendix, we are adding it to the regulation. During AFCARS Assessment Reviews, states have inquired about this policy many times and we feel that it is clearer to specify this in regulation. Consistent with existing AFCARS policy, the out-of-home care reporting population also includes a child who is in foster care under the joint responsibility of another public agency, such as the juvenile justice agency, and the title IV–E agency until title IV–E foster care maintenance payments cease to be made on behalf of the child (see the Child Welfare Policy Manual section 1.3, question 13). We understand there has been confusion in the past both in the reporting and analysis of the current AFCARS foster care reporting population related to children who are under the responsibility of another public agency or an Indian tribe pursuant to a title IV–E agreement. As noted in paragraph (a)(1)(ii), title IV–E agencies must include children for whom title IV–E foster care maintenance payments are provided under a title IV– E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations E agreement between the title IV–E agency and a public agency or an Indian tribe. We would like to clarify that only those children who are provided a title IV–E foster care maintenance payment under the title IV–E agreement are included in the out-of-home care reporting population; it does not include all the children in the other public agency or Indian tribe’s placement and care responsibility. In paragraph (a)(1)(ii) we refer to only title IV–E agreements that meet the requirements of section 472(a)(2) of the Act; not all interagency agreements or contracts with the other public agency or Indian tribe for services or payments meet these requirements. Section 472(a)(2) of the Act allows for payment of title IV–E foster care maintenance on behalf of an eligible child if there is a title IV–E agreement with another public agency or Indian tribe even though the child is not under the placement and care responsibility of the reporting title IV–E agency. This clarification reflects a continuation of the AFCARS reporting requirements and is not a change in the out-of-home care reporting population. To further clarify the children in the out-of-home care reporting population, we modified the regulation in section 1355.44(d)(6) Child and family circumstances at removal to identify these children reported in AFCARS and we discuss in the preamble for that section. Comment: Several state title IV–E agencies expressed concerns that the proposal expands the reporting population and will be burdensome for agencies to report all data elements on the reporting population; one state expressed concern that the reporting population would impact their CFSR measures; and one state commented that the expansion of the reporting population imposes an unrealistic mandate on state child welfare agencies to be responsible and penalized for data collected by other agencies. Response: We retained the requirement for title IV–E agencies to report a child until the title IV–E agency no longer has placement and care responsibility. We expect that title IV– E agencies would have the information that we require to be reported if they have responsibility for the child, regardless of where the child is placed. The revision to the out-of-home care reporting population has no impact on the population of children for the CFSR measures because only the children in foster care will be included in the outcome measures. We continue to believe that the benefits of data reporting on the out-of-home care reporting population will allow ACF to VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 develop a comprehensive picture of a child’s experience in the title IV–E agency’s placement and care with all removals, living arrangements, permanency plans, and exits from outof-home care and the ability to better inform our monitoring efforts. We will provide technical assistance to agencies on any remaining clarifications regarding state specific questions related to the reporting population. Section 1355.42(b) Adoption and Guardianship Assistance Reporting Population In paragraph (b), we define the reporting population for the adoption and guardianship assistance data file. In paragraph (b)(1) we require that the title IV–E agency must report data as described in section 1355.45 on each child who meets one of the conditions in the paragraphs (b)(1)(i) or (b)(1)(ii). In paragraph (b)(1)(i), we require the title IV–E agency to report information required by section 1355.45 on any child for whom there is a finalized adoption under a title IV–E adoption assistance agreement (per section 473(a) of the Act) with the reporting title IV– E agency that is or was in effect at some point during the report period. In paragraph (b)(1)(ii), we collect the information in section 1355.45 on any child in a legal guardianship who is under a title IV–E guardianship assistance agreement, pursuant to section 473(d) of the Act, with the reporting title IV–E agency that is or was in effect at some point during the current report period. In paragraph (b)(2), we clarify that a child remains in the adoption and guardianship assistance reporting population through the end of the report period in which the title IV–E agreement ends or is terminated. Comment: Many commenters objected to reporting ongoing information on children who are in this reporting population, stating that adopted children do not have open service cases even when there is a subsidy attached. Additionally, many commenters felt that collecting information on any child who is in a legal guardianship under a title IV–E guardianship assistance agreement reaches beyond our statutory authority and would require a significant change in the application and report programs and laws and policies in many states. Several other groups agreed with this opinion and raised concerns about the burden on workers and duplication to information in the out-of-home care data file (section 1355.44(h)). Some national advocacy/ public interest groups representing children and adoption agency interests PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 90531 were supportive of the separate data file proposed in the 2015 NPRM, and some suggested including children for whom there are finalized adoptions and guardianships without title IV–E assistance agreements. Response: We carefully considered the comments and have retained the adoption and guardianship assistance reporting population as proposed for the reasons we identified in the NPRM and given the growing dominance of this population as a component of the title IV–E beneficiary population. Overall, we believe there is a basic good governance principle at stake in having data about children who are receiving Federal benefits, especially considering the tremendous growth in the title IV– E adoption and guardianship assistance population over the last several years. While there is no statutory mandate to collect information for children under a title IV–E guardianship assistance agreement, section 479(c)(3)(C)(i) of the Act authorizes AFCARS to collect data on the ‘‘characteristics of children . . . removed from foster care’’, which encompasses the title IV–E guardianship assistance population. We continue to believe it is essential to collect the same information on children under title IV– E guardianship agreements as for title IV–E adoption agreements because we have the same need for the information for children supported by title IV–E funding. Section 1355.43 Data Reporting Requirements This section contains the AFCARS data reporting requirements. Section 1355.43(a) Report Periods and Deadlines In paragraph (a), we specify that: (1) There are two six-month report periods based on the federal fiscal year, October 1 to March 31 and April 1 to September 30 and; (2) the title IV–E agency must submit the AFCARS data files to ACF within 45 days of the end of the report period (i.e., by May 15 and November 14). Comment: A national organization representing state child welfare agencies recommended that we maintain the 45 day window for submitting data. They believe the 30 day requirement proposed in the 2015 NPRM would compromise data accuracy and integrity because some data may be excluded and there would not be enough time for agencies to check for errors in 30 days, particularly for state-supervised, county-administered states. Eight states and three other commenters opposed the shortened timeframe for the same reasons. E:\FR\FM\14DER3.SGM 14DER3 90532 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 Response: We modified the regulation to allow title IV–E agencies up to 45 days after the end of the report period to transmit the AFCARS file to accommodate commenter concerns. However, we wish to emphasize that the purpose of this 45 day transmission period is to extract the data and ensure the file is in the proper format for transmission. Data accuracy and integrity is to be completed by the IV– E agency on a continuous basis throughout the year. This is consistent with current AFCARS guidance. Section 1355.43(b) Out-of-Home Care Data File In paragraph (b), we provide instructions on how the title IV–E agency must report information for the out-of-home care reporting population. In paragraph (b)(1), we require a title IV–E agency to submit the most recent information for data elements in the General information (section 1355.44(a)) and Child information (section 1355.44(b)) sections of the out-of-home care data file. In paragraph (b)(2), we require the title IV–E agency to submit the most recent and historical information for most data elements in the following sections of the out-of-home care data file, unless the exception in paragraph (b)(3) applies: • § 1355.44(c) Parent or legal guardian information • § 1355.44(d) Removal information • § 1355.44(e) Living arrangement and provider information • § 1355.44(f) Permanency planning • § 1355.44(g) General exit information • § 1355.44(h) Exit to adoption and guardianship information Comment: In general, states, a national organization representing state child welfare agencies, and other national/advocacy organizations and individuals were supportive of the move to a historical data set because of the benefits in understanding outcomes for children and their experiences in out-ofhome care. However, many commented that they are concerned that the final rule will be a challenge for states to implement because of a significant burden to title IV–E agencies to collect and report new additional historical data with existing resources. In addition, they expressed concern with the magnitude of historical data that would be required to be reported as it would need to be tracked at local levels in order to produce six-month report period data files. Several national advocacy organizations and others made suggestions to expand historical VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 reporting to other data elements, while others, mostly state title IV–E agencies, suggested we limit the data to ‘‘core elements’’ that have utility and validity at the national level. A national organization representing state child welfare agencies suggested that we allow AFCARS revisions to occur in stages, by first creating historical data files and then adding data elements that are truly necessary in a federal database. Response: We are retaining the requirement that title IV–E agencies report certain historical data for the original reasons we proposed. In general, we removed several data elements and included other data elements as appropriate, which we explain in the section-by-section preamble. We acknowledge that there are a few states that currently do not have a comprehensive electronic case management system or central database that contains the child’s information across all counties. However, based on AFCARS Assessment Reviews, we believe that many of the historical data elements are available in the state’s information system or electronic case record. We continue to believe that the benefits of historical data reporting will allow ACF to develop a comprehensive picture of a child’s experience in the title IV–E agency’s placement and care with all entries, living arrangements, permanency plans, and exits from outof-home care. We believe there will be many benefits from receiving historical data, including: eliminating information gaps that exist in current AFCARS data which raise questions about the child’s experiences and make the data more difficult to analyze; building upon ACF’s ability to conduct sophisticated analyses of what happens to a child or groups of children in foster care; and providing better data to inform the current CFSR and other outcome monitoring efforts such as time in foster care, foster care re-entries and the stability of foster care placements. Finally, we did not revise the regulation to allow AFCARS revisions to occur in stages. Issuing one final rule on AFCARS with all revisions is the efficient way to revise AFCARS, since revisions to AFCARS have been proposed since the 2008 NPRM. We will provide technical assistance via webinars and other media channels to facilitate AFCARS implementation as well as offer one-on-one assistance to title IV–E agencies. Comment: Several states noted that there was not enough detail on the technical specifics related to the structure of the data set and asked for more specificity to better understand how title IV–E agencies will need to PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 modify their systems. States, organizations, and others asked technical clarification questions and several recommended that states have access to these data files. Finally, there were a few technical clarification questions about the state specific system issues. Response: While we are not regulating the technical specifications for reporting historical data, we anticipate that title IV–E agencies will submit a data file in much the same way that they submit it now, only with more information. Most of the information that will be historical is currently stored in a state’s electronic case file, based on our current knowledge of agency systems through our AFCARS Assessment Reviews. We will work through these technical pieces during implementation, which is consistent with the approach we took for the National Youth in Transition Database (NYTD). We intend to issue technical guidance as noted throughout the preamble regarding file specifications. Also, we will provide technical assistance via webinars and other media to implement AFCARS as well as providing one-on-one assistance with title IV–E agencies. In paragraph (b)(3), we require that the title IV–E agency report the date of removal, exit date, and exit reason for each child who had an out-of-home care episode prior to the final rule. This means that title IV–E agencies do not need to report complete historical and current information for these children. We did not receive any comments. Section 1355.43(c) Adoption and Guardianship Assistance Data File In paragraph (c), we require that the title IV–E agency report the most recent information for the applicable data elements in § 1355.45 that pertains to each child in the adoption and guardianship assistance reporting population on the last day of the report period. We did not receive comments on the 2015 NPRM specific to this paragraph. Section 1355.43(d) Missing Information In paragraph (d), we specify how the title IV–E agency must report missing information. Comment: Several states and a national organization representing state child welfare agencies were concerned about the burden on workers of having to manually fill in blank information and stated that data systems should be able to automatically mark as blank. Response: We would like to take this opportunity to explain what is meant by ‘‘missing’’ information as workers will not ‘‘manually fill in blank E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 information.’’ The requirements in this paragraph relate to the technical aspects of creating the AFCARS data file and prohibit defaulting to a valid response option when the worker did not enter information into the case management system and it is therefore missing. This prohibition is longstanding ACF practice and consistent with the statutory mandate in section 479(c)(2) of the Act that any AFCARS data collected must be reliable and consistent over time. If the worker did not enter information into the case management system necessary for reporting on a particular data element (for example, it is missing), then the agency must report the data element as blank. We did not make substantive changes to the final rule in response to comments. Comment: Several commenters asked how ‘‘blank’’ information is distinguished from missing data and if missing information could be used to determine penalties. Response: ‘‘Blank’’ is a valid response option only when specified in individual data elements in section 1355.44. When ‘‘blank’’ is not a valid response option, and no information was entered into the information system for a data element, then that is considered a missing data error under section 1355.46(b)(1). This is consistent with ACF’s longstanding practice. Errors under section 1355.46(b) are subject to the penalty provisions of section 1355.47. Section 1355.43(e) Electronic Submission In paragraph (e), we require a title IV– E agency to submit its data files to ACF electronically, in a format according to ACF’s specifications. Comment: Several commenters requested details for data file submissions, the type of technologies title IV–E agencies must use to submit AFCARS data, and made a recommendation to use the same electronic submission process used for the NYTD. Response: We have intentionally left the specific details for electronic submissions out of the regulation. We have learned through our experience with the existing AFCARS that it is prudent not to regulate the technical specifications for transmitting data because as technology changes, we must keep pace with the most current, practical, and efficient transmission methods that will meet title IV–E agency and federal needs. We currently provide guidance on submission of technical requirements and specifications through official ACF policy and technical bulletins and we will continue to do so VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 in providing guidance on the final rule. We appreciate the suggestion with regard to the NYTD process, and we will determine whether we can use a similar process upon implementation of the final rule. Section 1355.43(f) Record Retention In paragraph (f), we require that title IV–E agencies must retain all records necessary to comply with the data requirements in sections 1355.41 through 1355.45. As we stated in the 2015 NPRM (80 FR 7146), practically, this means the title IV–E agency must keep applicable records until the child is no longer of an age to be in the reporting populations. Comment: Four states expressed concerns with the proposed record retention timeframes, stating that they extend beyond the state’s record retention and destruction laws, may require a legislative change to meet this retention schedule, and potential costs to procure new storage hardware or expand data centers. Response: This is a clarification of current AFCARS requirements. Currently, title IV–E agencies must maintain the child’s history up to the time the child would no longer be eligible for services due to age in order to report the date of the first removal, the number of removals, and the date of discharge from the prior removals. Based on our AFCARS and SACWIS reviews, we understand that all agencies have electronic case records and that title IV–E agencies maintain all the information in their systems up to the time the child would no longer be eligible for services due to age. We understand that the typical age will be between 18 and 21, depending on the state or tribe’s foster care program and we will work with agencies on this at implementation. We want to be clear that title IV–E agencies must retain all information on a child that is required to be reported to AFCARS electronically and not purge the data since AFCARS data files will now contain certain historical information on children in the out-of-home care reporting population. We are retaining the data element without changes in the final rule because title IV–E agencies must report historical information on a child in outof-home care to be in compliance. Section 1355.44 Out-of-Home Care Data File Elements This section includes all of the data element descriptions for the out-ofhome care reporting population. PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 90533 Section 1355.44(a) General Information In paragraphs (a)(1) through (a)(3), we require that title IV–E agencies collect and report the following general information: (1) The title IV–E agency submitting the AFCARS data; (2) the report period date; and (3) the local county, jurisdiction or equivalent unit that has responsibility for the child. We received no substantive comments on the general information data elements in paragraphs (a)(1) through (a)(3) or recommendations for changes. However, we clarified in the regulation text that the information must be submitted in a format according to ACF’s specifications. In paragraph (a)(4), we require that the title IV–E agency report the child’s record number, which is an encrypted unique person identification number that is the same for the child, no matter where the child lives while in the placement and care responsibility of the title IV–E agency in out-of-home care and across all report periods and episodes. Comment: A couple of commenters noted that maintaining one encrypted record number for each child would be useful, for example, in reducing duplicate entries and erroneous eligibility determinations. However, a couple of state title IV–E agencies questioned why the agency must maintain the same number since agencies must include the complete placement history in each AFCARS transmission noting the administrative burden associated with maintaining the same number. Another commenter indicated there could be difficulties in maintaining the same child record number if the child was previously placed in a different county. Response: Our proposal for a consistent, unique, encrypted child record number for AFCARS reporting purposes is consistent with current practice. Ensuring that the child record number is consistent throughout the child’s entire out-of-home care experience ensures that the agency reports the child’s entire history. It also assists us in the analysis of the NYTD data, which also requires the use of an encrypted child record number. We are retaining this requirement and will provide technical assistance around this data element, including assistance related to maintaining record numbers across counties, to any agency requesting it at implementation. Section 1355.44(b) Child Information In paragraph (b), we require that the title IV–E agency report information about the child in out-of-home care E:\FR\FM\14DER3.SGM 14DER3 90534 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 including demographic, health, parenting, and other pertinent information about the child. We made several revisions to this section from the 2015 NPRM and integrated ICWArelated data elements that were proposed in the 2016 SNPRM, revised data elements as suggested by commenters, moved data elements, and removed some proposed data elements that we describe below: • Removed the data element requiring agencies to report whether or not the child was born in the United States. State title IV–E agencies and a national organization representing state child welfare agencies were opposed, stating: this level of specificity is not relevant to child welfare practice, could adversely impact work with families, and is not necessary in the AFCARS; it will be difficult to draw conclusions from this element; and, it does not address other situations, for example, whether the child is a naturalized citizen or one of the many U.S. citizens who are born on foreign soil. We still believe it is important to track information related to parental immigration detainment or deportation because we understand that this contributes to children entering foster care across the nation. In fact, the Applied Research Center recently estimated that up to 5,100 children were in foster care after their parents were detained or deported. Therefore, we added a circumstance at removal in paragraph (d) to address this instead. • Removed data elements requiring agencies to report information related to the child’s qualifying disability under IDEA. Several state title IV–E agencies and a national organization representing state child welfare agencies expressed confusion with the conditions in this data element and the health, behavioral or mental health conditions stating that the conditions were cumbersome and overlapped, which would lead to confusion among workers and commenters suggested the conditions be reconciled. Thus, we removed the data element on IDEA qualifying disability and revised the data element on health, behavioral or mental health conditions because we still want to track child disabilities, but we do not need to know the disability that qualified a child for IDEA (discussed below). Section 1355.44(b)(1) Child’s Date of Birth In paragraph (b)(1), we require the title IV–E agency to report the child’s birthdate. If the actual date of birth is unknown because the child has been abandoned, the agency must provide an estimated date of birth. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 Comment: One commenter suggested that we expand the definition of ‘‘abandoned’’ to include circumstances where the child was left with others and the identity of the parent(s) is known, but the parent(s) has not returned and therefore the child’s date of birth is not known. Response: We have provided a specific definition of abandoned as follows: The child was left alone or with others and the identity of the parent(s) or legal guardian(s) is unknown and cannot be ascertained. We will retain the data element as proposed because an estimated date of birth is to be used in very restrictive circumstances when a parent’s identity is not known, and not for an instance when a parent may be temporarily unavailable to provide the actual date of birth. Section 1355.44(b)(2)(i) Child’s Gender In paragraph (b)(2)(i), we require that the title IV–E agency report the child’s gender. We did not receive any relevant comments on this data element, however, we made a minor revision to rename the data element ‘‘Child’s gender.’’ Section 1355.44(b)(2)(ii) Child’s Sexual Orientation In paragraph (b)(2)(ii), we require that the title IV–E agency report the child’s self-reported sexual orientation for youth age 14 and older. The title IV–E agency must report whether the child self-identifies as ‘‘straight or heterosexual,’’ ‘‘gay or lesbian,’’ ‘‘bisexual,’’ ‘‘don’t know,’’ ‘‘something else,’’ or ‘‘decline’’ if the child declined to provide the information. The title IV– E agency must report ‘‘not applicable’’ for youth age 13 and under. Comment: We requested input on whether to require title IV–E agencies to collect LGBTQ-related data on youth in AFCARS. State title IV–E agencies, national advocacy/public interests groups and other organizations submitted comments on this topic. Commenters who supported collecting LGBTQ-related data were primarily advocacy organizations representing LGTBQ interests and generally asserted that such children/youth are overrepresented in the child welfare system, but we do not have a full picture of their experiences in foster care. Supportive commenters also noted that such youth often have unique service needs, are at an increased risk for poor outcomes, are more likely to be placed in group settings and experience more placements. Many of these same commenters suggested that we require agencies to collect information about a child’s gender identity or gender PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 expression, or the assigned gender of the child or caregiver at birth, which would allow agencies to understand data about gender transition over the course of a child’s life. One commenter suggested adding ‘‘two spirited’’ to address American Indian and Alaska Native children’s identities. In contrast, other commenters, primarily state IV–E agencies and a national organization representing state child welfare agencies, suggested that we should not collect data related to sexual orientation in AFCARS. However, they expressed appreciation for ACF’s interest in supporting and protecting LGBTQ youth in foster care and agreed that it is important to work toward a mechanism for collecting information related to a youth’s sexual orientation, gender identity and expression. State commenters pointed to the following reasons for their objection to collecting the data: It is unlikely that the data will be reliable and consistent because the youth would self-report which could result in an undercount of LGBTQ children in foster care; the sensitive and private nature of the data and sexual identity issues and questioned the implications of having this information in a government record and it being used in a discriminatory way; and collecting the data may pose safety concerns because the LGBTQ community is still vulnerable to discrimination in many parts of the country. State commenters also expressed the importance of proper staff training to collect information for a data element on sexual orientation. Response: We were persuaded by the commenters who suggested we include a data element on a child’s self-reported sexual orientation. In this final rule, we require title IV–E agencies to indicate whether the child self identifies as ‘‘straight or heterosexual,’’ ‘‘gay or lesbian,’’ ‘‘bisexual,’’ ‘‘don’t know,’’ ‘‘something else,’’ or ‘‘decline’’ if the child declined to report this information. These response options are consistent with the Youth Risk Behavior Surveillance System (YRBSS) questionnaire from the Centers for Disease Control and Prevention. We did not add a response option of ‘‘two spirited’’ to be consistent with the YRBSS. By requiring this information to be reported, we hope to move closer toward our goal to better support children and youth in foster care who identify as LGBTQ and ensure that foster care placement resources and services are designed appropriately to meet their needs. We are aware of situations where youth in foster care have been unsupported in their foster E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 care placements when their foster caregivers became aware of their sexual orientation. We did not add data elements requiring agencies to report information about a child’s gender identity or gender expression, or the assigned gender of the child. We understand the concerns expressed by commenters; however, we anticipate that adding this data element is the first step in addressing the needs of this population, and also will assist title IV– E agencies in recruiting and training foster care providers in meeting the needs of these youth. In regard to the concern that youth should not be obligated to report this sensitive and private information to their caseworker, the youth must self-report this information and if they do not feel comfortable disclosing such information, they may decline to report the information. In regard to the concern about having this information in a government record, information in state and tribal systems is protected by confidentiality requirements. We require title IV–E agencies to report ‘‘not applicable’’ for children age 13 and under to align with other statutory case planning requirements that apply to youth age 14 and older, for example the child’s case plan must be developed in consultation with the child age 14 and older and the child’s case planning team (at the child’s option) (sections 475(1)(B) and 475(5)(C)(iv) of the Act) and must document the child’s rights, including the right to receive a credit report annually. Additionally, the child must sign an acknowledgement that he/ she received these rights and that they were explained in an age appropriate way (section 475A of the Act). We will provide technical assistance to agencies on collecting this information as needed. Section 1355.44(b)(3) Reason To Know a Child Is an Indian Child as Defined in the Indian Child Welfare Act In paragraph (b)(3), we require that the state title IV–E agency report whether the state title IV–E agency researched whether there is reason to know that a child is an ‘‘Indian Child’’ as defined in ICWA by: Inquiring with the child, the child’s biological or adoptive parents (if not deceased), the child’s Indian custodian (if the child has one), and the child’s extended family; indicating whether the child is a member or eligible for membership in a tribe; and indicating whether the domicile or residence of the child, parent, or the Indian custodian is on an Indian reservation or in an Alaska Native Village. This is similar to paragraph (i)(3) as proposed in the 2016 VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 SNPRM, however we moved data elements related to ascertaining the tribal membership status of the child’s parents to section 1355.44(c)(3) and (c)(4), and we added, in response to comments discussed later, a data element for inquiring with the child’s extended family in paragraph (b)(3)(iv). Comment: Tribes, tribal organizations, child welfare organizations, and some states expressed that researching to determine whether a child may be an Indian child under ICWA is necessary to determine tribal status and for implementation of ICWA. Commenters stated that failure to research whether a child is an Indian child risks Indian children not being identified, and risks delay, expensive repetition of court proceedings, and placement instability if it is later discovered that a child is an Indian child under ICWA. Several states said that information on identifying whether a child is an Indian child as defined in ICWA is currently collected, although states varied in how they collect this information with some stating that it is collected through case narratives (electronic or paper). A state objected to expending resources required to report data in AFCARS that is already collected in case narrative. Several states and the national organization representing state child welfare agencies suggested simplifying the data element, stating that the primary focus should be on whether the agency made an inquiry, of whom, and whether that triggered notice per ICWA to a federally recognized tribe. One state suggested including a response option noting whether a particular data element is ‘‘not applicable due to age or developmental ability.’’ Response: We did not make changes based on these comments to simplify the data elements. We retained the data elements to reflect requirements in BIA’s regulation at 25 CFR 23.107(a). BIA’s regulation requires state courts to ask each participant in an emergency, voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child. The data will help identify of which sources title IV– E agencies most often inquire about whether a child is an Indian child as defined in ICWA and for which sources title IV–E agencies may need resource or training to support inquiry. Further, we are not revising the response options to allow for a ‘‘not applicable’’ response option. The requirement is for the state title IV–E agency to report whether or not it inquired of the specific individuals listed, including the child, whether the child is a member of or eligible for membership in an Indian PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 90535 tribe. If the state title IV–E agency was unable to inquire with the child, the agency would respond ‘‘no.’’ Comment: A state commented that these data elements ask for responses of ‘‘yes’’ or ‘‘no’’ that removes a level of specificity and obscures some incomplete data, such as there is no way to indicate when there are multiple tribes involved. Response: We understand the suggestion to be a technical issue for when states design their systems to report the required information and does not require a change in the final rule. We will work with state title IV– E agencies as they implement the final rule as needed. Comment: A state expressed that this data element doesn’t explicitly note there is a single parent by indicating the response option of ‘‘no’’ and stated that the elements are gender specific. Response: We understand the suggestion to be a technical issue for when states design their systems to report the required information. We will work with state title IV–E agencies as they implement the final rule. Comment: One state suggested adding a data element that records when a tribe confirms that the child is a member or eligible for membership. Response: We did not revise the final rule in response to these suggestions. The final rule contains the data elements we believe are most critical in relation to children to whom ICWA applies. Comment: A tribe stated that the language ‘‘inquired’’ is vague and was confused what the agency is inquiring about in this section. Response: We modified the language of the data element to require the state title IV–E agency to indicate whether the state title IV–E agency researched whether there is a reason to know that the child is an Indian child as defined in ICWA. In each paragraph (b)(3)(i) through (b)(3)(vii), the state title IV–E agency must respond to these threshold questions that indicate whether the state title IV–E agency knows or has ‘‘reason to know’’ that a child is an Indian child and thus is subject to the protections under ICWA. Comment: Tribes and several national advocacy organizations suggested adding the phrase ‘‘extended family’’ to the list of persons to whom the state may have inquired stating that the extended family would have useful information regarding whether the child may be an Indian child. Response: We agree with the suggestion and added the requirement for the state title IV–E agency to also report whether it inquired with the E:\FR\FM\14DER3.SGM 14DER3 90536 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations child’s extended family in paragraph (b)(3)(iv). Comment: Tribes and organizations representing tribal interests recommended replacing ‘‘on an Indian reservation’’ with ‘‘within a predominantly Indian community’’ to be more inclusive to tribal communities. A state suggested adding individual data elements to inquire about the residences of each child, parent, and Indian custodian to determine whether any of them are domiciled on a reservation. Response: We did not revise the final rule in response to these suggestions because the data element in paragraph (b)(5)(vii) follows the language used in several sections of BIA’s regulation (e.g., 25 CFR 23.107 and 23.113) about the ‘‘domicile or residence . . . on a reservation or in an Alaska Native village.’’ sradovich on DSK3GMQ082PROD with RULES3 Section 1355.44(b)(4) Application of ICWA and (b)(5) Court Determination That ICWA Applies In paragraph (b)(4), we require that the state title IV–E agency indicate whether it knows or has reason to know that a child is an Indian child as defined in ICWA. If the state title IV–E agency indicates ‘‘yes,’’ the state title IV–E agency must indicate the date it first discovered information that indicates that the child is or may be an Indian child as defined by ICWA in paragraph (b)(4)(i) and all federally recognized Indian tribes that are or may potentially be the Indian child’s tribe(s) in paragraph (b)(4)(ii). In paragraph (b)(5), we require that the state title IV–E agency 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), by indicating ‘‘yes, ICWA applies,’’ ‘‘no, ICWA does not apply,’’ or ‘‘no court determination.’’ If the state title IV–E agency indicated ‘‘yes, ICWA applies,’’ the state title IV– E agency must report the date that the court determined that ICWA applies in paragraph (b)(5)(i), and the Indian tribe the court determined to be the Indian child’s tribe for ICWA purposes in paragraph (b)(5)(ii). This is similar to paragraph (i)(5) as proposed in the 2016 SNPRM. Comment: States commented that some state laws offer protections that exceed the minimum federal standards in ICWA. For example, some states require ICWA protections for children who are members of state recognized tribes, children who are descendants but not enrolled, or eligible for enrollment VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 in a tribe, or for children who are members of tribes in Canada. Response: We encourage states to collect data they need to implement and evaluate state child welfare laws but only require collecting and reporting the ICWA related data through AFCARS as outlined in this rule. Comment: One commenter was concerned about reporting the court finding because the state may not know whether the tribe was asked or verified the child’s membership status. Another commenter recommended that this element be removed because of uncertainty in how this element is different from asking if the state agency has reason to know the child is covered by ICWA. Response: We did not make any changes to the final rule to remove this data element. As we indicated in our rational in the 2016 SNPRM, data elements related to whether ICWA applies are essential because application of ICWA triggers procedural and substantive protections and this data will provide a national number of children in the out-of-home care reporting population to whom ICWA applies. However, we revised the final rule to reflect the language in the BIA’s regulation at 25 CFR 23.107, which does not require a court order but instead a ‘‘court determination.’’ We also revised the final rule for the state title IV–E agency to indicate the date that the court determined that ICWA applies (paragraph (b)(5)(i)), rather than the date of the court order. Comment: One tribe suggested that the state title IV–E agency should be required to continue to report data that accurately reflects tribal involvement even when a court order does not include the information. The commenter felt this is important to capture to ensure that courts are diligent about engaging the tribe and avoid opportunities to misrepresent the true number of ICWA cases involved in State court. Response: We agree that tribal involvement is an essential component of ensuring the courts are diligent about engaging tribes. However, we did not add the suggested data element because we must balance the need to have the information with the burden and cost it places on state agencies to do so. Comment: One commenter asked whether ACF will compare the name of the tribe indicated in this data element, with the name of the tribe listed in other data elements, and whether it will be considered an error if the name of the tribe is different for each element. The commenter suggests that the data element instead ask whether the title PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 IV–E agency verified that agency records regarding the name of the Indian tribe matched state records. Response: ACF will develop and issue error specifications in separate guidance and will work with state title IV–E agencies during implementation to address these types of technical issues with reporting the data. Section 1355.44(b)(6) Notification In paragraph (b)(6), if a state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), we require that the state title IV–E agency report: Whether the Indian child’s parent or Indian custodian was sent 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); whether the Indian child’s tribe(s) (if known) was sent legal notice of the child custody proceedings more than 10 days prior to the first child custody proceeding; and the name(s) of the tribe(s) sent notice. The first two requirements are similar to paragraph (i)(8) as proposed in the 2016 SNPRM and the third requirement is the same as paragraph (i)(9) as proposed in the 2016 SNPRM. Comment: Two states suggested requiring the state to report the date that the tribe, mother, father, and Indian custodian were notified of the child’s removal as that will provide information on whether the 10 day legal notice requirements were met. One state commented that because they do not know 10 days in advance when a child is going to be removed that we instead require the state to report the date that the notice was sent. Another state suggested adding a data element asking when a notification was made to the tribe and when/if the tribe provided a response, and another state suggested removing notification elements until data exchanges are improved with the court to make this efficient. One state suggested removing the response option ‘‘the child’s Indian tribe is unknown’’ and for the state to report the Indian child’s tribe’s name. Response: We did not make any changes to the final rule to remove the suggested response option or to require agencies to provide the date of notification. We determined that the actual date of the notification is not essential, but instead, as we proposed, whether the state sent the notice within the statutory 10 day notification requirement. We are retaining the response option ‘‘the child’s Indian tribe is unknown’’ as we are aware that there may be instances where ICWA applies because a state knows or has reason to E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations know a child is an Indian child yet the name of the child’s tribe is unknown. We proposed in the 2016 SNPRM and retained in the final rule the requirement for the state to indicate the name of the Indian child’s tribe that was sent proper legal notice more than 10 days prior to the first child custody proceeding in accordance with 25 U.S.C. 1912. We have, however, removed the requirement for the state title IV–E agency to report whether the state title IV–E agency replied with additional information that the Indian child’s tribe(s) requested, if such a request was made. Comment: A state noted the proposed data element does not accommodate a situation when there are potentially multiple tribes that were sent the notification. Response: We are retaining the requirement in the final rule for the state to indicate whether the Indian child’s tribe(s) was given proper legal notice more than 10 days prior to the first child custody proceeding in accordance with 25 U.S.C. 1912(a). We will provide technical assistance to states that need assistance in reporting multiple tribes. Comment: The national organization representing state child welfare agencies supports the notification data elements that align with ICWA mandates. They noted that states have different methods to notify the parties, such as through a court process, the state’s attorney general’s office, or by the state agency. The organization recommends simplifying the data elements to require the agency to report to whom the agency gave proper notice, i.e., parents, custodians, and tribes. Response: We understand the suggestion to be a technical issue for when states design their systems to collect the required information that would not require a change to the final rule. States may design a drop down menu or another mechanism appropriate to their system to report the notice requirements as long as the state can report whether the state sent the notice to the mandated parties more than 10 days prior to the proceeding. Comment: A tribe recommended that we also require states to report that the state sent the notifications when parental rights will be terminated for an Indian child. Response: We are retaining the notification requirements for the state to report whether it provided the 10 day notifications in reference to the first child custody proceeding. The BIA defines child-custody proceeding for ICWA purposes to mean and include any action, other than an emergency VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 proceeding, that may culminate in one of the following outcomes: Foster-care placement, termination of parental rights, pre-adoptive placement, and adoptive placement. Therefore, if the first child custody proceeding is in reference to a TPR, the agency must report that information to AFCARS. Comment: Two organizations suggested that we require states to report whether a state court or agency used the list of tribes published by the Bureau of Indian Affairs to notify a tribe of the first child custody hearing. Response: We determined that it is not essential for states to specify in AFCARS whether they sent the notice to the tribe as it is listed in the BIA publication. As we indicated in the preamble to the 2016 SNPRM, the timing of the notice is an essential procedural protection provided by ICWA. Hence, we proposed and issued in the final rule the requirement for states to report whether proper legal notice of the child custody proceedings was sent more than 10 days prior to the first child custody proceeding. This is consistent with the requirements under the ICWA statute at 25 U.S.C. 1912(a) and the BIA regulations at 23.11(c). Comment: Two organizations suggested that we require the state to report whether legal notice was provided for the first child custody hearing to the same grandparents and other adult relatives who were notified about a child’s placement into foster care as required by title IV–E. Response: We tailored the ICWA data elements that we proposed and issued in the final rule to be consistent with the requirements under the ICWA statute and the BIA regulations, and relative notification of the first child custody hearing is not required. However, we added a requirement in 1355.44(b)(3)(iv) for the state to report whether the state title IV–E agency researched whether there is a reason to know that the child is an Indian child as defined in ICWA by indicating whether the state agency inquired with the child’s extended family. We believe this could respond to the intent of the commenter’s suggestion, which is to ensure that an Indian child’s relatives are made aware when a child in their family is placed into foster care. Comment: We received several comments regarding the proposed data element requiring the state to report in instances where the tribe(s) requested additional information, whether the state title IV–E agency replied with the additional information that the Indian tribe(s) requested. One state commented that the data element is unclear and asked whether the timeframe was at any PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 90537 time during the six month report period or whether it only applied to the first child custody proceeding. Another state commented that it does not collect data on whether the tribe(s) requested additional information or whether the agency replied to the request. The national organization representing state child welfare agencies also recommended removing the element because they did not believe the proposed data file element provides essential information on children for whom ICWA applies. A tribe recommended adding the date of the tribal request for additional information and the date the agency responded to the tribe’s request for additional information. Response: We agree with the suggestions to remove the data element in proposed (i)(10) in the 2016 SNPRM that required the state to indicate whether the state title IV–E agency replied with the additional information that the Indian tribe(s) requested. We have removed this data element from the final rule. Section 1355.44(b)(7) Request To Transfer to Tribal Court and (b)(8) Denial of Transfer In paragraph (b)(7), if the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), we require that the state title IV–E agency report whether either parent, the Indian custodian, or Indian child’s tribe requested, orally on the record or in writing, that the state court transfer the foster care or termination of parental rights proceeding to the jurisdiction of the child’s tribe at any point during the report period. This is similar to paragraph (i)(6) as proposed in the 2016 SNPRM, except that the language was updated to be consistent with 25 CFR 23.115. In paragraph (b)(8), if the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(7), we require that the state title IV–E agency report whether the state court denied the request to transfer the case to tribal jurisdiction and if so, the reason for the denial from a list of three options, as outlined in ICWA statute: (1) Either of the parents objected to transferring the case to the tribal court; or (2) the tribal court declined the transfer to the tribal court; or (3) the state court determined good cause exists for denying the transfer to the tribal court. This is similar to paragraph (i)(7) as proposed in the 2016 SNPRM, except that we updated the language to be consistent with 25 CFR 23.118. E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90538 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations Comment: A tribe commented that ‘‘good cause’’ findings should be made as outlined in the BIA’s Guidelines and suggested that we add a data element that captures the specific ‘‘good cause’’ finding used to decline each transfer. Response: We have not made any changes to the final rule to incorporate recommendations for the noted BIA’s Guidelines. Rather in the final rule, if the state court determined that transfer is not appropriate, the state must report which reason from among a list of three options, as outlined in ICWA statute (25 U.S.C. 1911(b)) and BIA’s regulation at 25 CFR 23.117: (1) Either of the parents objected to transferring the case to the tribal court; or (2) the tribal court declined the transfer to the tribal court; or (3) the state court determined good cause exists for denying the transfer to the tribal court. Comment: The national organization representing state child welfare agencies supports capturing data from the court order indicating a transfer of the case to the tribal court of the Indian child’s tribe and an indication on the reason for denial (when applicable). However, they suggested simplifying the data elements to ask only whether a tribe requested to transfer the case to tribal court and if yes, whether the transfer was ordered. We also received suggestions from states on revising the element. One state recommended changing the data element to capture the most recent transfer request regardless of when the request occurred as long as it is during the current removal episode. Response: ACF is not persuaded by the comments to revise the data elements regarding transferring cases from state court to tribal jurisdictions. We are retaining the two proposed data elements with modifications to be consistent with the BIA regulation at 25 CFR 23.115. That regulation states that the parents, Indian custodian, or the Indian child’s tribe may request, orally on the record or in writing, that the state court transfer the child custody proceeding to tribal jurisdiction. It does not require that the request be contained in a court order. Therefore we are removing the requirement for the agency to report only when there is a specific court order requesting a transfer of jurisdiction and adopting the same BIA regulatory language so that we are consistent. Further, we clarified the instructions for this element in the final rule to require the state to report if there was a request at any point during the report period. Comment: Several organizations representing tribal interests suggested that we require the state to report the VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 date that the state court approved transfer of jurisdiction to the tribe. Response: We appreciate the suggestion and understand the value for determining timely implementation of ICWA and case transfer between jurisdictions, however, we did not change the final rule to add this data element. Rather, we retained the two transfer data elements we proposed in the 2016 SNPRM and modified them to be consistent with the BIA regulations. As we indicated in the 2016 SNPRM, we require two transfer data elements to provide an understanding of how many children in foster care with ICWA protections are or are not transferred to the Indian child’s tribe, the reasons why a state court did not transfer the case, and aid in identifying tribal capacity needs and issues that may prevent tribes from taking jurisdiction. Comment: One tribe suggested that the phrase ‘‘a court order’’ be expanded to include ‘‘or other entry of the Court’’, as at times the state court may not enter an order transferring the case at the same hearing as when a petition to transfer is submitted to a court. Response: We have removed the term ‘‘court order’’ from paragraphs (b)(7) and (b)(8) to be consistent with the BIA regulation at 25 CFR 23.115 through 23.117. That regulation states that the parents, Indian custodian, or the Indian child’s tribe may request, orally on the record or in writing, that the state court transfer the child custody proceeding to tribal jurisdiction. The BIA regulation does not require that the request or the order for transfer be contained in a court order. Section 1355.44(b)(9) Child’s Race In paragraph (b)(9), we require that the title IV–E agency report the race of the child. The options are: American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, White, declined, abandoned, and unknown because the child or parent or legal guardian does not know or is unable to communicate the child’s race, or at least one race of the child. Comment: Two states and one other commenter did not agree that we should include ‘‘race-abandoned’’ as a response option in this data element because it is not a race. One commenter also noted that including ‘‘race-abandoned’’ and ‘‘race-unknown’’ as response options are confusing. Response: We provide the agency with the option of not reporting a specific race in two situations when the race is not known: When the child is abandoned and therefore the race of the child is unknown (race-abandoned) or PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 that the race is unknown because the child or parent or legal guardian does not know or is unable to communicate the child’s race (race-unknown). The response option of race-abandoned allows us to differentiate when there is no parent available to provide race information from when the child or parent does not know or is unable to communicate it. A child’s race can be categorized as unknown only if a child or his parents do not actually know the child’s race. If the title IV–E agency has not asked the child or parent for the child’s race, the agency may not report unknown as the response. Further, it is acceptable for the child to identify that he or she is multi-racial, but does not know one of those races. In such cases, the title IV–E agency must indicate the racial classifications that apply and also indicate that a race is unknown. Comment: Two commenters representing tribal interests suggested that we amend the racial category of American Indian or Alaska Native to include whether the child has origins in any of the original peoples of North or South America and if yes, whether the child is a member of, or eligible for, membership in a federally recognized Indian tribe. Both commenters also recommended that we delete the language, ‘‘maintains tribal affiliation and community attachment’’ in the race definition of American Indian or Alaska Native. Response: The language used reflects the OMB Revised Standards for the Classification of Federal Data on Race and Ethnicity, standardizing federal data collection. We agree that requiring state title IV–E agencies to collect and report data that could identify a child as an Indian child as defined in ICWA is of paramount importance. Therefore, while we did not revise this data element, we require additional information on the child’s tribal membership or eligibility for tribal membership in paragraphs (b)(3), (b)(4), and (b)(5). Section 1355.44(b)(10) Child’s Hispanic or Latino Ethnicity In paragraph (b)(10), we require that the title IV–E agency report the Hispanic or Latino ethnicity of the child. The agency must respond ‘‘yes,’’ ‘‘no,’’ ‘‘declined,’’ ‘‘abandoned,’’ or ‘‘unknown’’ because the child, parent or legal guardian does not know or is unable to communicate the child’s ethnicity. Comment: One commenter suggested that we expand the definition of ‘‘abandoned’’ to include circumstances where the child was left with others and the identity of the parent(s) is known, E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 but the parent(s) has failed to return and therefore the child’s Hispanic or Latino ethnicity is not known. Response: We have provided a specific definition of abandoned as follows: The child was left alone or with others and the identity of the parent(s) or legal guardian(s) is unknown and cannot be ascertained. We will retain the data element as proposed as it is to be used in very limited circumstances when a parent’s identity is not known, and therefore not available to identify the child’s ethnicity, and not any time a parent may be temporarily unavailable. Section 1355.44(b)(11) and (b)(12) Health Assessment Date and Timely In paragraphs (b)(11) and (12), we require the title IV–E agency to report whether the child had a health assessment during the current out-ofhome care episode, and if so, the date of the child’s most recent health assessment and if it was within the timeframes established by the title IV– E agency. Comment: State title IV–E agencies and a national organization representing state child welfare agencies raised concerns about collecting information on timeliness and frequency of health assessments. They indicated that health assessment requirements would differ based on the agency’s schedule and individual child circumstances, such as age and medical condition; therefore, it would be difficult to compare data across title IV–E agencies. They stated that to answer the question of timeliness, the system must know the assessment schedule and dates of assessments, doubling the data entry requirements. States suggested that this information would be better assessed as part of a qualitative assessment that focuses on child well-being outcomes or case reviews, rather than a national data set. One state recommended that we require agencies to report health assessment information according to an established federal timeline. Response: We appreciate the comments, but did not remove the requirement for reporting on health assessments because we still believe it is important to ensure that the title IV– E agency is identifying and addressing the health needs of children in foster care. As we indicated in the 2015 NPRM, collecting this information will allow us to ensure children in foster care are receiving health assessments in accordance with the title IV–E agency’s established schedule per the statutory requirements in section 422(b)(15)(A) of the Act. It also provides us an opportunity to ensure that the child’s VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 health needs are identified, reviewed, and addressed by a medical professional through routine health assessments. These data elements may also serve as a proxy for other well-being indicators. We also did not impose a requirement that title IV–E agencies report health assessment information according to an established federal timeline because section 422(b)(15)(A) does not provide ACF with the authority to impose a federal timeframe on title IV–E agencies. Instead, agencies describe and adhere to the timeframes described in their Child and Family Services Plan. Comment: One national advocacy/ public interest group supported including this data, but suggested clarifying the language to read ‘‘timely health assessment as defined by the state.’’ Another national advocacy/ public interest group pointed out that the term ‘‘health assessment’’ has varying implications and suggested that ACF provide guidance on the difference between health screenings and health evaluations. Response: In reference to the suggestion to clarify that the assessments are timely based on title IV–E agency specific definitions, paragraph (b)(11) asks whether the date reported in paragraph (b)(12)(ii), if applicable, is ‘‘within the timeframes for initial and follow-up health screenings established by the title IV–E agency, as required by section 422(b)(15)(A) of the Act.’’ Hence, the information that the title IV–E agency indicates should be in the context of this title IV–B plan requirement regarding the ongoing oversight of health care services, with which agencies are already complying. The title IV–E agency must report the most recent health screenings that are conducted according to the agency’s established schedule. ACF provided guidance in ACF–CB–PI–10–11 that agency schedules for initial and periodic health screenings ‘‘should mirror or incorporate elements of existing professional guidelines for physical, mental, and dental health screenings and standards of care.’’ In regard to the request to distinguish between a health screening and a health evaluation, we will provide technical assistance to states if they need assistance in determining how to report on a child’s health assessment, which could be either a screening or an evaluation, depending on the agency’s process. Comment: State title IV–E agencies felt that the language of the data elements was vague and questioned how to report whether a health assessment is ‘‘timely’’ based on the agency’s ‘‘own established schedule.’’ PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 90539 Several states asked whether these data elements included all initial or followup assessments during the out-of-home care episode and pre-placement screenings. Response: We appreciate the commenters’ questions and revised the regulation to clarify the instructions, based on the commenters’ concerns. We revised the regulation to require first that the agency report whether the child had a health assessment during the current out-of-home care episode in paragraph (b)(11)(i). The assessment could include an initial health screening or any follow-up health screening per section 422(b)(15)(A) of the Act. If so, the title IV–E agency must report the date the child’s most recent health assessment during the out-of-home care episode and whether it is within the timeframes for initial and follow-up health screenings established by the title IV–E agency per section 422(b)(15)(A) of the Act (paragraphs (b)(11)(ii) and (b)(12)). This revision is to make clear that the agency is to report on the timeliness of the most recent health assessment. If the agency indicates that there was no health assessment done, there is no requirement to report the date and timeliness of the assessment. Comment: A state title IV–E agency asked how a blank response is distinguished from missing data and how to report if a child is not in care long enough to receive a health assessment or the timeliness straddles reporting periods. Response: In reference to the blank response query, consistent with ACF’s longstanding practice, ‘‘blank’’ is a valid response option only when specified in individual data elements. In paragraph (b)(11)(i), the agency must report either ‘‘yes’’ or ‘‘no;’’ ‘‘blank’’ is not an appropriate response and is considered a missing data error under section 1355.46(b)(1). ‘‘Blank’’ is an appropriate response for paragraphs (b)(11)(ii) and (b)(12) only if the response to paragraph (b)(11)(i) is ‘‘no.’’ Thus, if a child has not been in foster care long enough to have an assessment, the agency would report no in paragraph (b)(11)(i) and blank for paragraphs (b)(11)(ii) and (b)(12). Comment: Several national advocacy/ public interest groups suggested additional data elements, such as specific dates of the initial health assessment; initial dental evaluations and other preventative dental care; whether children in foster care are receiving Early and Period Screening, Diagnosis, and Treatment (EPSDT) services under Medicaid; and for title IV–E agencies to report on each aspect of the title IV–B Health Care E:\FR\FM\14DER3.SGM 14DER3 90540 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 Coordination and Oversight Plan under section 422(b)(15)(A) of the Act (for example, how children’s medical information will be updated, steps to ensure continuity of health services, and protocols for the oversight of prescription medicines). Response: As we indicated in the 2015 NPRM, collecting health, behavioral or mental health related information will allow us to ensure children in foster care are receiving health assessments in accordance with the title IV–E agency’s established schedule per the statutory requirements in section 422(b)(15)(A) if the Act. Therefore, we will not require agencies to report additional health assessment information because we do not have a need for those details at the national level. Section 1355.44(b)(13) Health, Behavioral or Mental Health Conditions In paragraph (b)(13), we require the title IV–E agency to report whether the child was diagnosed by a qualified professional as having one or more health, behavioral or mental health conditions from a list of eleven conditions prior to or during the child’s current out-of-home care episode. If so, the agency must report whether it’s an existing condition or a previous condition (a previous diagnoses that no longer exists as a current condition). The title IV–E agency must also report if the child had an exam or assessment, but none of the conditions apply, or if the agency has not received the results of the exam or assessment. When the child has not had an exam or assessment, the agency must indicate so. Comment: State title IV–E agencies, a national organization representing state child welfare agencies, and many other national advocacy/public interest groups indicated that the qualifying disabilities of the proposed element IDEA Qualifying Disability and the conditions for health, behavioral or mental health conditions overlapped which would confuse workers and lead to inaccurate and misleading data at a national level. Some national advocacy/ public interest groups also suggested including specific additional conditions, such as oppositional defiant disorder, major depressive disorder, attention deficit hyperactivity disorder, and traumatic brain injury. Response: We were persuaded by the number of commenters who expressed concern about the overlapping health, behavioral or mental health conditions and the IDEA qualifying disabilities and revised the final rule so that there is one element that addresses a child’s health, behavioral or mental health conditions. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 We removed the data element IDEA Qualifying Disability in the final rule. We combined some of the conditions we proposed for the IDEA Qualifying Disability data element with the Health, behavioral or mental health conditions that we modified to update with current common diagnoses suggested by several commenters, separated out conditions that are currently reported together, as suggested by commenters, and revised to more closely align with definitions for diagnoses from the National Institutes of Health (NIH). We describe these revisions below. We believe that this revised list will provide us with better data on the child’s health characteristics and meet the requirement of section 479A(a)(7)(A)(v) of the Act regarding reporting clinically diagnosed conditions for certain children in foster care. Paragraph (b)(13)(i) is ‘‘Intellectual disability’’ ’’ and is unchanged from the 2015 NPRM because we did not receive comments specifically asking for a revision to this definition. Paragraph (b)(13)(ii) is ‘‘Autism spectrum disorder’’ that we combined from the IDEA qualifying disability data element proposed in the 2015 NPRM and revised to be more closely aligned with the definition from the NIH Neurological Disorders and Stroke. Paragraph (b)(13)(iii) is ‘‘Visual impairment and blindness’’ that we combined from the IDEA qualifying disability and Health, behavioral or mental health conditions data elements proposed in the 2015 NPRM. Paragraph (b)(13)(iv) is ‘‘Hearing impairment and deafness’’ that we combined from the IDEA qualifying disability and Health, behavioral or mental health conditions data elements proposed in the 2015 NPRM. Paragraph (b)(13)(v) is ‘‘Orthopedic impairment or other physical condition’’ that we combined from the IDEA qualifying disability and Health, behavioral or mental health conditions data elements proposed in the 2015 NPRM. Paragraph (b)(13)(vi) is ‘‘Mental/ emotional disorders’’ that we combined from the IDEA qualifying disability and Health, behavioral or mental health conditions data elements proposed in the 2015 NPRM. Paragraph (b)(13)(vii) is ‘‘Attention deficit hyperactivity disorder’’ that we included as a separate condition, based on comments suggesting that it not be included with another condition. The definition is based on the definition from the NIH National Institutes of Mental Health. Paragraph (b)(13)(viii) is ‘‘Serious mental disorders’’ that we included as a PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 separate condition that comprises several disorders previously proposed under the IDEA qualifying disability and Health, behavioral or mental health conditions data elements. The definition is also based in part on the definitions for bipolar disorder and psychotic disorders from the NIH National Library of Medicine. Paragraph (b)(13)(ix) is ‘‘Developmental delay’’ that we combined from the IDEA qualifying disability data element proposed in the 2015 NPRM and revised to include delays related to language/speech and motor skills. Paragraph (b)(13)(x) is ‘‘Developmental disability’’ and is unchanged from the 2015 NPRM because it is based on statute. Paragraph (b)(13)(xi) is ‘‘Other diagnosed condition’’ that we combined from several conditions proposed in the IDEA qualifying disability and Health, behavioral or mental health conditions data elements proposed in the 2015 NPRM. Comment: A national organization representing state child welfare agencies and a few states commented that reporting over time whether a child’s condition is existing, previous, or does not apply could make the data file cumbersome, confuse aggregate data at the federal level, and place burden on workers who may not have the training or expertise on detailed, technical health care information. They felt that what was collected in AFCARS for conditions is reasonable because it informs the relevant issues at a high level. They made suggestions for other mechanisms to report the data, such as data sharing agreements with other agencies. Response: We have not removed the requirement for agencies to report whether a child’s condition is existing, previous, or does not apply. We continue to believe, as we stated in the 2015 NPRM, that it is important to capture comprehensive information on a child’s diagnosed health, behavioral and mental health conditions beyond the current AFCARS report period, which this data element will allow. Collecting conditions for which the child was previously diagnosed, but do not exist as current diagnoses, will provide increased opportunities for analysis regarding the health and service needs of children in out-of-home care, which current AFCARS data does not allow. We will provide technical assistance on reporting this information as needed. Comment: Two states asked for clarification as to who is considered a ‘‘qualified professional.’’ E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations Response: As stated in the 2015 NPRM preamble (80 FR 7149), a qualified professional is determined by applicable laws and policies of the state or tribal service area and may include a doctor, psychiatrist, or, if applicable in the state or tribal service area, a licensed clinical psychologist or social worker. This is consistent with current AFCARS practice. Comment: Two states were confused by the response options on whether a qualified professional has conducted an exam or assessment and recommend we only provide two response options for the agency to indicate whether or not the child has a diagnosed condition, or if it’s unknown. Response: We did not revise the final rule based on the comments to allow for an ‘‘unknown’’ response option. We intentionally did not propose a response option of ‘‘unknown’’ because it is too broad for a meaningful analysis and has a high potential to be overused. These responses as well as the response options for previous or existing condition are designed to give us information regarding a child’s health, behavioral or mental health conditions that vary over time without having to track other more complicated historical information such as start and end dates of conditions. We believe that this will provide us with better data on the child’s health characteristics and meet the requirement of section 479A(a)(7)(A)(v) of the Act regarding reporting clinically diagnosed conditions for certain children in foster care. Additionally, we will provide technical assistance on reporting this information as needed. Comment: Six states sought clarification on when to mark conditions as ‘‘previous.’’ Response: The agency reports the response option of ‘‘previous’’ when a child was diagnosed for a condition that no longer exists as decided by a medical professional. Comment: One state suggested that agencies should collect start and end dates of diagnoses to allow for a more robust analysis and would give agencies the ability to determine when a diagnosis was applicable if the diagnosis changes during the report period. Response: We did not make changes to the final rule based on this comment as the response options of existing condition, previous condition, and does not apply will provide us an adequate history on the occurrence of a child’s conditions at the federal level without the dates of diagnosis. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 Section 1355.44(b)(14) School Enrollment, (b)(15) Educational Level, and (b)(16) Educational Stability In paragraph (b)(14), the title IV–E agency must report whether the child is a full-time student at and enrolled in (or in the process of enrolling in) elementary or secondary education, or is a full or part-time student at and enrolled in post-secondary education or training, or college, or whether the child is not enrolled in any school setting. We made a minor revision to this data element in the final rule to include parttime students in the response options ‘‘post-secondary education or training’’ or ‘‘college.’’ In paragraph (b)(15), the title IV–E agency must report the highest educational level from kindergarten to college or post-secondary education/ training completed by the child as of the last day of the report period. We made a minor change to this data element in the final rule to add a response option of ‘‘GED’’ if the child has completed a general equivalency degree or other high school equivalent. In paragraph (b)(16), the title IV–E agency must report if the child is enrolled or is in the process of enrolling in a new elementary or secondary school prompted by an initial placement after entry into foster care or a placement change during the report period and if so, reason(s) for the change in enrollment (paragraphs (b)(16)(i) through (b)(16)(vii)). Comment: In general, a national organization representing state child welfare agencies and states expressed concerns with state title IV–E agencies gathering data elements related to educational information because they stated it would create a burden for workers and would not result in accurate or useful data at the federal level since educational information, such as enrollment information, varies among jurisdictions and states. Three state commenters suggested forming a data exchange with the Department of Education instead of state title IV–E agencies collecting education information proposed through AFCARS. Response: We considered the comments concerned about the increased burden, however we are retaining the educational data elements related to school enrollment, educational level, and educational stability because, as we stated in the 2015 NPRM, these data elements address the requirements in section 471(a)(30) of the Act relating to an assurance for title IV–E eligible children being full-time elementary or secondary school students or completed secondary PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 90541 school, section 475(1)(C)(ii) of the Act relating to the child’s health and education records and grade level performance while in foster care, and section 475(1)(G) of the Act relating to the case plan requirement to develop an educational stability plan for a child in foster care. We have learned through AFCARS Assessment Reviews and technical assistance that several title IV– E agencies already collect information on school enrollment, the highest level of education completed, and the reasons for changes in school enrollment. These data elements provide important information about this issue. As we explained in the 2015 NPRM, we believe that it is beneficial to collect information on the highest educational achievement of the child so that we can analyze trends in the relationship between a child’s age and his or her educational achievement. Information on a child’s recently completed grade level measures educational progress and aligns with statutory changes made by the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Pub. L. 110–351). Collecting information on the reasons title IV–E agencies determine that remaining in the school of origin or a previous school is not in the child’s best interest will help to identify and address barriers to educational stability after an initial placement into foster care or a change in living arrangements. In reference to the suggestion for a data exchange with the Department of Education to collect a child’s education information rather than collect it through AFCARS, we determined that approach would not yield consistent information. The Department of Education collects different and varied data from states, none of which is at the child level, as is the case with AFCARS. We will provide technical assistance as needed to title IV–E agencies to ensure accuracy of reporting. Comment: In response to paragraph (b)(14), a national organization representing state child welfare agencies and state title IV–E agencies expressed concerns about consistency in reporting school enrollment information due to variations in the definitions of elementary, secondary, post-secondary education or training, college, not school-age, and not enrolled among jurisdictions. They suggested removing the data element. Other states and national advocacy/public interest groups suggested reporting children enrolled in any ‘‘formal education program’’ to capture children in half and full-day kindergarten programs in E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90542 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations states where compulsory attendance begins at first grade. Response: We did not remove the requirement for agencies to report on student enrollment or make changes to the definitions of ‘‘elementary’’ or ‘‘secondary’’ based on the comments because the data element is based on the statutory requirement in section 471(a)(30) of the Act. That provision specifies that title IV–E agencies must assure that each child who has attained the minimum age for compulsory school attendance under state law and with respect to whom there is eligibility for a payment under the title IV–E plan is a full-time elementary or secondary school student or has completed secondary school. The provision also defines an ‘‘elementary or secondary school student’’ as ‘‘the child is (A) enrolled (or in the process of enrolling) in an institution which provides elementary or secondary education, as determined under the law of the State or other jurisdiction in which the institution is located; (B) instructed in an elementary or secondary education program in accordance with a home school law of the State or other jurisdiction in which the home is located; (C) in an independent study elementary or secondary education program, in accordance with the law of the State or other jurisdiction in which the program is located, that is administered by the local school or school district; or (D) incapable of attending school on a fulltime basis due to the medical condition of the child, which incapability is supported by regularly updated information in the case plan of the child.’’ Comment: In response to paragraph (b)(14), state title IV–E agencies and national advocacy/public interest groups suggested that agencies report ‘‘part-time’’ post-secondary education. Response: We agreed with the commenters to include ‘‘part-time’’ enrollment in addition to full-time and revised the definitions for the response options ‘‘post-secondary education or training’’ and ‘‘college’’ to include parttime enrollment. Now, the regulation specifies that enrollment in ‘‘postsecondary education or training’’ refers to full or part-time enrollment in any post-secondary education or training, other than an education pursued at a college or university and enrollment in ‘‘college’’ refers to a child that is enrolled full or part-time at a college or university. We understand that many older foster youth who are enrolled in post-secondary education or training or college attend part-time and therefore, we wish to capture both enrollment options for these older youth. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 Comment: In response to paragraph (b)(15), three states expressed concern with the proposal to report the highest educational level completed by the child as of the last day of the report period, noting that a child who is in kindergarten on the last day of the report period will be reported as ‘‘not school-age.’’ Response: We understand the commenter’s concern, however, we are retaining the requirement for the agency to report the highest educational level completed by the child as of the last day of the report period. We are not seeking information on the child’s current educational level. As we explained in the 2015 NPRM, we proposed to collect information on the child’s highest educational level which measures educational progress and aligns with section 475(1)(C)(ii) of the Act relating to the child’s health and education records and grade level performance while in foster care. Comment: In response to paragraph (b)(15), national advocacy/public interest groups suggested additions to paragraph (b)(15) that included, adding early childhood response options, adding general equivalency degree (GED) or other high school equivalent, and adding different levels of higher education to include one year and two year degrees/certificates. Response: We agree with the commenters who recommended adding GED as a response option, so we added it to the regulation which now reads: ‘‘Indicate ‘‘GED’’ if the child has completed a general equivalency degree or other high school equivalent.’’ We did not add response options recommended by other comments because we do not need the suggested detail about different levels of early childhood education or higher education for children in foster care at the national level. Comments: In response to paragraph (b)(16), a national organization representing state child welfare agencies and three state title IV–E agencies suggested removing the data element on educational stability stating that the data would be unreliable and not useful because the reasons for new school enrollments are often more complex than the six response options presented. They also suggested that a child’s educational stability would be better assessed through a qualitative review and recommended that we collect only whether a change in a child’s school occurred. One commenter was concerned that due to the complexity of this data element, workers would be likely to select ‘‘other,’’ reducing the accuracy of the responses. PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 Response: We did not make changes to the regulation based on these comments because we continue to believe that a child’s educational stability is an important issue and this data element is a step to gathering more information on this issue. As we stated in the 2015 NPRM, we seek this information because it will conform to section 475(1)(G) of the Act which is a case plan requirement to ensure the development of a plan for the educational stability of a child in foster care. We will provide technical assistance to title IV–E agencies as needed to ensure that this data element is reported accurately. Comment: In response to paragraph (b)(16), national advocacy/public interest groups recommend requiring agencies to report all school changes during a report period. They also recommended adding more data elements to gather information about whether or not school changes were in the best interests of a child, including whether the placement supports the child’s permanency plan, whether it was a school discipline transfer, and whether there was a lack of living options near the original school. Response: We are retaining the language proposed in the 2015 NPRM in the final rule and did not add the response options recommended by the commenters for several reasons. We do not need details at the national level about multiple school changes during a report period or other more detailed reasons for a school change. As we indicated in the 2015 NPRM, collecting information on the reasons title IV–E agencies determine that remaining in the school of origin or a previous school is not in the child’s best interest will help to identify and address barriers to educational stability after an initial placement into foster care or a change in living arrangements. We believe the response options in paragraphs (b)(16)(i) through (b)(16)(vii) will allow us to identify those barriers and to determine ways to best address them. Section 1355.44(b)(17) Pregnant or Parenting In paragraph (b)(17)(i), the title IV–E agency must report whether the child is pregnant as of the end of the report period. We revised this data element in the final rule. In the 2015 NPRM, we proposed to require the agency to report whether the child is or was previously pregnant. In paragraph (b)(17)(ii), the title IV–E agency must report whether the child has ever fathered or bore a child. We revised this data element in the final rule. In the 2015 NPRM, we proposed to E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations require the agency to report the number of children of the minor parent. In paragraph (b)(17)(iii), the title IV– E agency must report whether the child and his/her child(ren) are placed together in foster care. We revised this data element in the final rule. In the 2015 NPRM, we proposed to require the agency to report the number of children living with the minor parent. Comment: Several states and a national organization representing state child welfare agencies generally objected to collecting information on children in foster care who are parents or pregnant for various reasons including: It is relevant in the NYTD (see 45 CFR 1356.83(g)(52)) not AFCARS; it will only be applicable to a small number of children and will not result in accurate reporting; it could impose an extensive data collection burden on case workers since there is no minimum age imposed on who the agency is to report, it is difficult to know a pregnancy begin date, and it would inappropriately apply to youth who are not of child-bearing age. Response: We require information on children in foster care who are pregnant or parenting to be reported in AFCARS because state-by-state data on this topic is required to be included in the annual report to Congress per section 479A(a)(7)(B) of the Act. The NYTD does not provide case level information on all children in foster care; therefore this type of data is not available in the NYTD. We revised the proposed data elements on pregnancy and minor parents and combined them into one data element that will meet the data needed in section 479A(A)(7)(B) of the Act for the report to Congress. We now require agencies to meet this requirement through one yes/no element, thus reducing the reporting burden for these elements. We moved away from our 2015 NPRM proposal that required agencies to report the total number of biological children either fathered or borne by the child because we do not need that level of information. Lastly, while we still require agencies to report whether the child in foster care is placed with his/ her children, we limited the scope to any point during the report period, and not for each living arrangement. We will provide technical assistance to title IV– E agencies as needed to ensure that this data element is reported accurately. Comment: Several commenters suggested that agencies report more information about children in foster care who are pregnant or parenting, such as data on fathers and parenting responsibilities of youth in care, and situations when the child is placed VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 90543 separately in foster care from the minor parent. Response: We revised the data elements on children who are pregnant or parenting for purposes of meeting the data reporting requirement in section 479A(a)(7)(B) of the Act for the Annual Report to Congress. These suggestions would go beyond the data we need for that report and therefore, are not needed at the federal level. section 504 of the Rehabilitation Act as it is a civil rights statute which prohibits discrimination against individuals with disabilities, which we did not propose in the 2015 NPRM. This data element relates to special education as defined in 20 U.S.C. 1401(29), which means specifically designed instruction, at no cost to the parent(s), to meet the unique needs of a child with a disability (80 FR 7151, Feb. 9, 2015). Section 1355.44(b)(18) Special Education In paragraph (b)(18), we require the title IV–E agency to report on the child’s special education, status by indicating whether the child has an Individualized Education Program (IEP) or an Individualized Family Service Program (IFSP). Comment: A state title IV–E agency, the association representing state title IV–E agencies, and others recommended that we simplify data reporting regarding a child’s special education status. They did not believe it would be useful to distinguish between an IEP and IFSP for comparison across states due to the variability across jurisdictions. Since only children from birth through age three will have an IFSP, the age of the child will indicate which type of plan is in place for the child. One state asked when the state should report about a child’s IEP/IFSP. Response: We made revisions to the final rule in response to these comments. Agencies will be required to indicate ‘‘yes’’ or ‘‘no’’ as to whether the child has an IEP/IFSP. The agency reports this information as of the end of the report period. Comment: One state asked if children with an IEP for advanced placement should be included in the element. Response: Yes, if the IEP meets the definition in section 614(d)(1) of Part B of Title I of the IDEA and implementing regulations. Comment: Several commenters suggested additional data elements such as specifics on the types of special needs services provided to a child, whether a representative from the agency attended the child’s IEP/IFSP meetings, and to provide an option to identify children who are receiving services and accommodations in compliance with section 504 of the Rehabilitation Act. Response: We did not make changes to the final rule in response to these comments because the overwhelming number of comments we received asked us to simplify this element. In addition, we wanted to note that it would not be appropriate for us to require agencies to report about a child’s services under Section 1355.44(b)(19) Prior Adoption In paragraph (b)(19), the title IV–E agency must report whether the child experienced a prior legal adoption, including any public, private, or independent adoption in the United States or adoption in another country, and a tribal customary adoption, prior to the current out-of-home care episode. If so, in paragraph (b)(19)(i), the title IV– E agency must report the date it was finalized, and in paragraph (b)(19)(ii), the title IV–E agency must report whether the child’s prior adoption was an intercountry adoption. Comment: Several states, a national organization representing state child welfare agencies, and others objected to us collecting data on all of the child’s prior adoptions including the detailed information on the type of the prior adoption, and where the child was previously adopted. The commenters concerns were that agencies capture information on prior adoptions ad hoc based on the willingness of the person to provide the information; that this level of detail may not exist; that the reliability of collecting every prior adoption is questionable; that it would be overly burdensome to research all of the child’s prior adoptions and questioned the usefulness of the information and our authority to collect it. Several states suggested instead that we collect only the date of the most recent prior adoption and whether or not the child was adopted within the state. Response: We were persuaded by the objections noted about these data elements and revised the final rule to address some of the concerns We are statutorily mandated to collect information about the number of children who enter foster care after an adoption was legalized per section 479(d) of the Act. As such, we did not remove the prior adoption data elements entirely, but revised them to require the title IV–E agency to report information for the most recent prior adoption only. We also revised the data element on the type of each prior adoption to instead require the title IV–E agency to report if a prior adoption was an intercountry adoption and revised the name of the PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90544 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations data element. This is to address reporting on disrupted intercountry adoptions required under section 422(b)(12) of the Act which is currently provided in the state’s annual title IV– B plan update. We removed the data element proposed in the 2015 NPRM asking for the jurisdiction name of each prior adoption. Comment: Associations representing tribal interests suggested including customary tribal adoptions to bring awareness and data to this issue. Response: We agree and revised the final rule to include that title IV–E agencies report whether the child experienced a prior legal adoption, including a tribal customary adoption, before the current out-of-home care episode. Comment: National advocacy/public interest groups suggested that we collect more information on prior adoptions, such as the child’s birth country, whether the previous adoption assistance agreement was terminated and the previous adoptive parents are still receiving subsidies, whether the previous adoption was open or closed, the reasons why the adoption disrupted/ dissolved, and categorizing adoption dissolutions and disruptions separately. Response: We considered these comments, but did not make any changes to the final rule based on this comment and instead reduced the information required on prior adoptions to collect information needed to satisfy statutory requirements in section 479(d) and 422(b)(12) of the Act. In addition, we took into consideration the overwhelming response from state agencies that our proposal to collect more details on prior adoptions would be burdensome and outweighs its utility. Comment: States questioned how they would report on prior adoptions if they did not know or could not ascertain the information. They were concerned about missing data counting towards a penalty. Response: We have revised the requirements for reporting on prior adoptions so that the agency only has to report the most recent prior adoption. As such, we do not expect that agencies will have difficulty in ascertaining whether the child was adopted prior to entering foster care. If the information is unknown because the child was abandoned, then the title IV–E agency would report ‘‘abandoned’’ for paragraph (b)(19). Section 1355.44(b)(20) Prior Guardianship In paragraph (b)(20)(i), the title IV–E agency must report whether the child VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 experienced a prior legal guardianship and if so, to report the date that the prior legal guardianship became legalized in paragraph (b)(20)(ii). We revised our 2015 NPRM proposal to only require the title IV–E agency report the date of the most recent prior guardianship and eliminated reporting on the type and jurisdiction of each prior guardianship. Comment: Several states objected to us collecting all of the child’s prior legal guardianships, and the detailed information on the type of the prior guardianship and where the child had a prior legal guardianship. The commenters concerns were that agencies capture information on prior guardianships ad hoc based on the willingness of the person to provide the information; that this level of detail may not exist; that the reliability of collecting every prior guardianship is questionable; that it would be overly burdensome to research all of the child’s prior guardianships; and questioned how useful the information is and our authority for collecting it. Response: We were persuaded by the objections noted and revised the final rule to address the concerns about reporting each prior legal guardianship and the type and jurisdiction of each prior guardianship. We are statutorily mandated to collect information about the number of children who enter foster care after a legalized guardianship per section 479(d) of the Act. As such, we did not remove the prior legal guardianship data element entirely, but revised it to require the title IV–E agency to report the date of the most recent prior legal guardianship only if the child experiences a prior legal guardianship. In addition, we removed the data elements proposed in the 2015 NPRM on the type and jurisdiction of each prior guardianship. Section 1355.44(b)(21) Child Financial and Medical Assistance In paragraph (b)(21), we require the title IV–E agency to report whether the child received financial and medical assistance, other than title IV–E foster care maintenance payments. If so, in paragraphs (b)(21)(i) through (b)(21)(xiii), the title IV–E agency must indicate whether each type of federal or state/tribal assistance applies: SSI or Social Security benefits; Title XIX Medicaid; Title XXI SCHIP; State/Tribal adoption assistance; State/Tribal foster care; Child support; Title IV–E adoption subsidy; Title IV–E guardianship assistance; Title IV–A TANF; Title IV– B; SSBG; Chafee Foster Care Independence Program; Other. PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 Comment: States, a national organization representing state child welfare agencies, and others opposed our proposal to require the title IV–E agency to report specific federal assistance per diem payment amounts for each of the child’s living arrangements and expressed concern about the increased burden and potential inaccuracies in reporting the data. One commenter indicated that collecting this information would be burdensome for counties. Response: In response to these concerns, we were persuaded to revise the financial assistance data elements by removing the data element related to federal assistance per diem payment amounts for every living arrangement and consolidated the financial and medical assistance response options into one data element. We must still collect the extent and nature of assistance per section 479(c) of the Act; therefore, in paragraph (b)(21) we require title IV–E agencies to report whether or not the child is receiving each of 13 types of state/tribal and federal financial and medical assistance during the report period. Comment: One commenter questioned whether this data element includes a situation where a child returns home but remains in the agency’s custody and whether the data element applies to financial and medical assistance that the child received during the reporting period but prior to coming into the agency’s custody. Response: The title IV–E agency must report the assistance that applies beginning when the child enters the reporting population and continues until the child is no longer in the agency’s placement and care responsibility. Therefore, yes the agency must report the assistance that applies if the child is placed at home and remains under the placement and care responsibility of the title IV–E agency. Section 1355.44(b)(22) Title IV–E Foster Care During Report Period In paragraph (b)(22), we require the title IV–E agency to report whether a title IV–E foster care maintenance payment was paid on behalf of the child at any point during the report period. We received no comments on this data element. Section 1355.43(b)(23) Through (b)(25) Siblings In paragraph (b)(23), we require the title IV–E agency to report the total number of siblings that the child under the placement and care responsibility of the title IV–E agency has, if applicable. E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations In paragraph (b)(24), we require the title IV–E agency to report the number of siblings of the child who are in foster care as defined in section 1355.20. In paragraph (b)(25), we require the title IV–E agency to report the number of siblings of the child who are in the same living arrangement as the child, on the last day of the report period. Comment: In general, several states and a national organization representing state child welfare agencies agreed that the issue of sibling placement is important at the practice level when planning for children, but is better captured as a qualitative data set. Commenters noted it may not be possible for the caseworker to know whether the child has siblings and if so how many, because agencies encounter multiple overlapping sibling groups, uncertain parentage, and mixed biological, legal, and step-parent relationships. They had concerns and questions about the 2015 NPRM proposal on siblings (which were in the sections 1355.43(e) and 1355.44 of the 2015 NPRM) including the definition of siblings, reporting sibling record numbers, and the reliability and consistency of the data. They commented that it would not provide meaningful valid information for national review, pointed out that there are many varied reasons for siblings not being be placed together, and that our proposal would not take into account the complexity of what may constitute a family in the eyes of a child. Some states questioned the value of trying to match sibling record numbers and believe this requirement is onerous and of limited value. Some commenters recommended that if data on siblings must be gathered in AFCARS, we should collect the number of siblings of the child, the number of siblings who are also in care, and the number of siblings who are in the same placement with the child. Another commenter recommended that we collect the number of siblings placed with the child at the start of the placement and at any point during the child’s time in this placement to determine if the child was placed with siblings when initially removed from home. Response: We carefully reviewed the comments and suggestions and while we understand the concerns raised, we determined that it is important to continue require title IV–E agencies to report information about siblings. We acknowledge that there are many issues that make collecting data on siblings difficult. As we noted in the preamble to the 2015 NPRM, section 471(a)(31)(A) of the Act requires title IV–E agencies to make reasonable efforts to place siblings VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 removed from their home in the same foster care, kinship guardianship, or adoptive placement, unless such a placement is contrary to the safety or well-being of any of the siblings. However, we were persuaded to revise the sibling data elements to address commenter concerns and simplify reporting. We addressed one of the major concerns raised by commenters by removing the data elements requiring the agency to report the sibling’s child record numbers, which indicated which siblings were or were not placed with the child. Now, title IV–E agencies must report the total number of siblings of the child, the number of siblings that are also in foster care as defined in section 1355.20, and the number in the same living arrangement on the last day of the report period. We recognize the frequent movement of children makes it difficult to capture sibling information, so we will only require reporting as of the last day of the report period for the data element on siblings who are in the same living arrangement. Comment: States asked for a clearer definition of sibling and questioned, for example whether to report if the child in foster care has step-siblings with which the child has no contact. Response: We define a sibling to the child as his or her brother or sister by biological, legal, or marital connection. We acknowledge that title IV–E agencies may confront issues that may make collecting data on siblings difficult; however, we are not providing further specifics on the definition of sibling. The definition is broad and would include reporting the total number of step-siblings which constitutes a legal connection. Section 1355.44(c) Parent or Legal Guardian Information In paragraph (c), the title IV–E agency must report information on the child’s parent(s) or legal guardian(s). In the 2015 NPRM we proposed to require the title IV–E agency to report the date of the first judicial finding that the child has been subject to child abuse or neglect, if applicable. We received comments from states requesting that we remove this data element stating that is excessive information, has limited value in measuring outcomes, and it does not add substantive value to the data file. States also questioned the usefulness of this data element due to varying state practices and believed it would be best left to a qualitative review process to determine how timeframes for permanency are being met by agencies rather than collecting information that may or may not be applicable. Another state and a PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 90545 university expressed confusion in how to report a judicial finding for multiple removals and a private citizen suggested revising the name of the data element to use broader judicial terminology for states that do not have judicial findings of abuse or neglect. We were persuaded by the commenters and removed this element. Section 1355.44(c)(1) and (c)(2) Year of Birth Parent or Legal Guardian In paragraphs (c)(1) and (c)(2), the title IV–E agency must report the birth year of the child’s parent(s) or legal guardian(s). We did not receive comments on these data elements. Section 1355.44(c)(3) and (c)(4) Tribal Membership for Mother and Father In these paragraphs, state title IV–E agencies must indicate whether the mother and father are members of an Indian tribe. In the 2016 SNPRM we proposed that state title IV–E agencies gather information about the parents’ tribal membership in sections 1355.43(i)(3)(ii) and (i)(3)(iv). We determined that this information is better integrated in section 1355.44(c) with other data elements on parent and legal guardian information. We retained the requirement in the 2016 SNPRM that these elements apply only to state title IV–E agencies because they collect information related to the potential application of ICWA. We did not receive substantive comments to the 2016 SNPRM on this specific data element and have retained it in the final rule. Section 1355.44(c)(5) Termination/ Modification of Parental Rights In paragraph (c)(5), the title IV–E agency must report whether the parents’ rights were terminated or modified on a voluntary or involuntary basis. A voluntary termination means the parent(s) voluntarily relinquished their parental rights to the title IV–E agency, with or without court involvement. This is a new data element that we added in response to a state commenter who asked for clarification on how the agency should report voluntary surrenders, stating that the type of termination of parental rights (TPR) and the pertinent dates can be different for each parent. In the 2016 SNPRM, we proposed to require that the state title IV–E agency report whether the rights of the Indian child’s parents or Indian custodian were involuntarily or voluntarily terminated in paragraph (i)(19). However, this information is already required in paragraph (c)(5). In paragraph (c)(5)(i), the title IV–E agency must report each date the title IV–E agency filed a petition to E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90546 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations terminate/modify parental rights regarding the child’s biological, legal, and/or putative parent(s), if applicable. Comment: An organization representing tribal interests commented that the data element for the TPR petition filing date should be consistent with ACF’s policy that allows tribes to use alternative methods for helping a child achieve a permanent placement, such as modification or suspension of parental rights (Child Welfare Policy Manual section 9.2, question 12). Response: We agree that the regulation should be consistent with the noted policy and revised the regulation to require the title IV–E agency to report the dates the agency filed a petition for a ‘‘modification’’ of parental rights or a termination of parental rights. Comment: Two states commented that we should eliminate the data element for the TPR petition filing date stating it does not provide substantive value to the data file. They suggested that we should limit reporting to the most recent petition filing date if the child is currently available for adoption or was available during the reporting period. A university asked whether we need the TPR filing petition date for national policy development or program monitoring. A state supported the TPR petition filing date element to analyze the length of time it takes for a child to achieve permanency through adoption but questioned the purpose of reporting each petition date when multiple petitions are filed. Response: We are retaining the requirement for the title IV–E agency to report each date the agency filed a petition to terminate or modify parental rights of the child’s biological, legal, and/or putative parent(s), if applicable. The petition date and date of the termination or modification of parental rights in paragraph (c)(5)(ii) will allow us to determine the time between when the agency files a petition to terminate or modify parental rights and the actual date of the termination or modification. Additionally, AFCARS Assessment Reviews have shown that TPR filing petition dates are typically in the state electronic case files. Regarding multiple petitions, we require title IV–E agencies to report each petition date in the event that multiple petitions are filed for putative parents. As we stated in the 2015 NPRM, we require title IV–E agencies to report information on a child’s putative father, if applicable. A putative father is a person who is alleged to be the father of a child, or who claims to be the father of a child, at a time when there may not be enough evidence or information available to determine if that is correct. For the VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 existing AFCARS, we have fielded questions on whether title IV–E agencies should provide information on putative fathers. Since the parental rights of any putative fathers may need to be terminated before a child legally is free for adoption in some jurisdictions, we want to be clear that we are interested in collecting information on putative fathers as well. We will work with title IV–E agencies during implementation and provide technical bulletins for reporting the termination and modification of parental rights petition dates. Comment: Two states commented that the petition and termination/ modification dates should be tied to the individual parent. Response: We agree and will work with title IV–E agencies during implementation if there is any additional clarification needed. Comment: Two states asked how to report the petition dates if the child was previously adopted and whether it is limited to the current removal episode. Response: We’d like to clarify. If a child was adopted, later enters the outof-home-care reporting population, and the agency files a petition to terminate or modify parental rights, the agency must report the petition filing date for the adoptive parent because that is the parent of the child. We will work with title IV–E agencies during implementation if further clarification is needed. In paragraph (c)(5)(ii), the title IV–E agency must report the date that parental rights are voluntarily or involuntarily terminated/modified for each biological, legal and/or putative parent, if applicable. Comment: An organization representing tribal interests commented that this data element should include language consistent with ACF’s policy that allows tribes to use alternative methods for helping a child achieve a permanent placement, such as modification or suspension of parental rights (Child Welfare Policy Manual section 9.2, question 12). Response: We agree that the regulation should be consistent with the noted policy and revised the regulation to require the title IV–E agency to report the dates of a ‘‘modification’’ of parental rights or a termination of parental rights. Section 1355.44(c)(6) Involuntary Termination/Modification of Parental Rights Under ICWA If the state title IV–E agency indicated in paragraph (c)(5) that the TPR was involuntary and if a state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 to paragraph (b)(5), we require that the state title IV–E agency 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) (paragraph (c)(6)(i)); • whether the court decision to involuntarily terminate parental rights included the testimony of one or more qualified expert witnesses (QEW) in accordance with 25 U.S.C. 1912(f) (paragraph (c)(6)(ii)); and • whether prior to TPR, 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) (paragraph (c)(6)(iii)). These are similar to paragraph s (i)(20) and (i)(21) of the 2016 SNPRM except that we updated the language consistent with 25 CFR 23.121. Comment: The national organization representing state child welfare agencies and state title IV–E agencies suggested revisions to simplify this section, such as reporting only whether a court made findings that continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical damage for termination of parental rights and if yes, did a QEW support this finding or only report court order information for involuntary TPRs. Another state suggested that we re-order and simplify the voluntary TPR data elements. A commenter also suggested that we ask whether a TPR was voluntary or involuntary. Response: We did not make changes to the final rule in response to these comments to simplify these elements. As we indicated in the 2016 SNPRM preamble, termination standards are important protections for Indian children as defined in ICWA given that Congress specifically created minimum federal standards for removal of an Indian child to prevent the breakup of Indian families and to promote the stability and security of families and Indian tribes by preserving the child’s links to their parents and to the tribe through the child’s parent(s). Further, distinguishing between involuntary and voluntary terminations of parental rights is important in ICWA given specific protections that must be provided in each context (25 U.S.C. 1912(e), (f) and 25 U.S.C. 1913). The final rule now requires state and tribal title IV–E agencies to report whether a TPR is voluntary or involuntary in paragraph (c)(5). Furthermore, we integrated the E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations ICWA-related data elements into certain sections of the final rule, thereby moving the data elements on TPR proposed in the 2016 SNPRM to paragraph (c) and added a new data element on active efforts at involuntary TPR (paragraph (c)(6)(iii)). Comment: A state recommended that we require states to list the reasons for involuntary TPR, using the reasons from its state statute, such as whether a parent is palpably unfit or abuses chemicals. Response: We did not make changes in response to these suggestions. States information systems differ and include information useful for their own internal purposes, but not mandated by AFCARS. We encourage states to consider collecting data that helps states to evaluate and implement state law, but we do not require that they report those data to AFCARS. Comment: A state and tribe suggested adding data elements asking about alternatives to TPR, such as tribal customary adoption, where the parental rights are modified and not severed, and the adoptive parent is granted the same rights and responsibilities as they would under a contemporary adoption. Response: We’d like to clarify. As we explained in the preamble to the 2016 SNPRM, the state title IV–E agency must report information regarding voluntary and involuntary terminations/ modification of parental rights, which include tribal customary adoptions. Comment: Tribes and organizations representing tribal interests recommend that we add numerous data elements, including: • Whether the court made a determination in a court order that active efforts at TPR had been made by the state title IV–E agency and whether active efforts were provided by any party seeking TPR. • whether the tribe was notified when a state seeks TPR for an Indian child. Response: We agree with the suggestion to require state title IV–E agencies to report on active efforts at involuntary TPR. Active efforts are required under the ICWA to prevent the breakup of the Indian family in two instances: Prior to removal and prior to involuntary TPR. Specifically in paragraph (c)(6)(iii), we require state title IV–E agencies to report for involuntary TPR 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). This language is consistent with the BIA regulation at 25 CFR 23.120 which requires that a court VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 concluded that active efforts were made, and does not require a court order. We decline to require state title IV–E agencies to report the date on which the tribe was notified when a state seeks involuntary TPR for an Indian child and provide our reasoning in the preamble section on Notification in paragraph (b). Section 1355.44(c)(7) Voluntary Termination/Modification of Parental Rights Under ICWA If the title IV–E agency indicates in paragraph (c)(5) that the TPR was voluntary, and the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), the state title IV–E agency must indicate whether the consent to termination of parental or Indian custodian rights was executed in writing and recorded before a court of competent jurisdiction 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). This is similar to sections 1355.43(i)(22), (i)(23) and (i)(24) as proposed in the 2016 SNPRM, however, we updated the language consistent with 25 CFR 23.125. Comment: One state recommended including a mechanism or process to ensure that an Indian child retains tribal membership after voluntary TPR because it’s important for a child to know his/her lineage and tribal membership, which offers benefits such as health services and educational resources for higher education. Response: We agree that it is important to recognize such mechanisms and revised the regulation to refer to either a ‘‘modification’’ of parental rights or a termination of parental rights. However, AFCARS is not the appropriate vehicle for establishing a mechanism or process regarding maintaining tribal membership because AFCARS is a data reporting system. Section 1355.44(d) Removal Information In paragraph (d), we require that the title IV–E agency report information on each of the child’s removal(s) from home. Section 1355.44(d)(1) Date of Child’s Removal In paragraphs (d)(1)(i) through (d)(1)(iii), we require the title IV–E agency to collect and report the date(s) on which the child was removed for each removal of a child who enters the placement and care responsibility of the title IV–E agency. We received no PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 90547 comments on this data element and have retained the 2015 NPRM proposed language in the final rule. Section 1355.44(d)(2) Removal Transaction Date In paragraph (d)(2) we require the title IV–E agency to report the transaction date for each of the child’s removal dates reported in paragraph (d)(1). The transaction date is a non-modifiable, computer-generated date which accurately indicates the month, day and year each response to paragraph (d)(1) was entered into the information system. We did not receive relevant comments on this data element and have retained the 2015 NPRM proposed language. Section 1355.44(d)(3) Removals Under ICWA In paragraph (d)(3), if a state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), we require that the state title IV–E agency 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) (paragraph (d)(3)(i)); • whether the evidence presented for foster care placement as indicated in paragraph (d)(3)(i) included the testimony of a qualified expert witness in accordance with 25 U.S.C. 1912(e) and 25 CFR 23.121(a) (paragraph (d)(3)(ii)); and • whether the evidence presented for foster care placement as indicated in paragraph (d)(3)(i) indicates that prior to each removal reported in paragraph (d)(1) 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) (paragraph (d)(3)(iii)). These are similar to sections 1355.43(i)(12) and (i)(14) as proposed in the 2016 SNPRM. Comment: The national organization representing state child welfare agencies was in support of a data element asking about court determinations of active efforts because members believe this is the best data element to capture information on active efforts to prevent the breakup of the Indian family. One tribal commenter noted that in some state courts, local practice has been to stipulate to active efforts, rather than creating a record that demonstrates active efforts. E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90548 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations Response: We retained the requirement regarding court determinations that active efforts were made to prevent the breakup of the Indian family with modifications to be consistent with BIA regulations at 25 CFR 23.120. We now require state title IV–E agencies to indicate in paragraph (d)(3)(iii) whether the evidence presented for foster care placement as indicated in paragraph (d)(3)(i) indicates that prior to each removal active efforts were made to prevent the breakup of the Indian family and that these efforts were unsuccessful in accordance with 25 U.S.C. 1912(d). Comment: We received several concerns and suggestions about the requirement for the state title IV–E agency to report whether the court found 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 and that the evidence presented included testimony by a QEW. Two tribes suggested that states be required to report whether the QEW meets the standards per the BIA’s Guidelines. The national organization representing state child welfare agencies noted that states experience challenges in meeting the requirement in ICWA for QEWs, stating there are not enough QEWs to meet the need for court proceedings. One state noted that there is no way to report that a court does not require a QEW to testify even if the agency knows that a QEW should testify. Response: We did not make changes to the final rule in response to these comments. We are retaining the requirement that the state must report whether evidence presented included the testimony of a QEW for the specified court finding but updated the language to reflect the BIA regulation at 25 CFR 121(a). As we noted in the preamble to the 2016 SNPRM, the removal data elements will provide data on the extent to which Indian children as defined in ICWA are removed in a manner that conforms to ICWA’s standards, informs ACF about the frequency of and evidentiary standards applied to removals of Indian children, helps identify needs for training and technical assistance related to ICWA, and highlights substantive opportunities for building and improving relationships between states and tribes. Removing the requirement for agencies to report whether a QEW provided testimony would diminish our ability to achieve these purposes. We require the state title IV–E agency to report whether the evidence presented for foster care placement as indicated in paragraph VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 (d)(3)(i) included the testimony of a QEW in accordance with 25 U.S.C. 1912(e) and 25 CFR 121(a) (paragraph (d)(3)(ii)). Thus, we are not asking whether or not the state title IV–E agency knows that ICWA requires a QEW’s testimony, rather we are requiring the state title IV–E agency to indicate whether the evidence presented included the testimony of a QEW. Comment: We received comments suggesting additional data elements related to: Emergency removals per section 1922 of ICWA, such as whether the court determined that the state properly removed the Indian child and how long the emergency removal lasted; and foster care voluntary removals, such as whether a court order indicates that the voluntary consent to a foster care placement was made in writing and recorded in the presence of a judge. Response: We did not revise the final rule in response to these suggestions. We understand the value of collecting data related to voluntary foster placements and emergency removals of children to whom ICWA applies. We encourage states to consider collecting this information, if consistent with their own practice models, but we decline to require collecting and reporting it to AFCARS. At this time, we seek to understand the scope of all removals of children to whom ICWA applies and therefore we’ve required broad data elements we believe are most critical in relation to Indian children as defined in ICWA. or is not related to the child. We did not add a separate response option for ‘‘homelessness’’ because it is included in the response option of ‘‘other.’’ However, we added ‘‘homelessness’’ as a circumstance of removal at paragraph (d)(6)(xxxiv). Comment: Three commenters representing tribal interests recommended adding a response option for ‘‘Indian custodian,’’ who is a person recognized under ICWA that may not be a relative, parent, or legal guardian. Response: We specified in section 1355.41(c)(2) that for an Indian child as defined in ICWA, the term ‘‘legal guardian’’ in the specific data elements of §§ 1355.44(c)(1), (c)(2), (d)(4), and (d)(5), includes an Indian custodian as defined in ICWA at 25 U.S.C. 1903 if the Indian custodian has legal responsibility for the child. Section 1355.44(d)(4) Environment at Removal In paragraph (d)(4) we require the title IV–E agency to report the type of environment (household or facility) from a list of seven that the child was living in at the time of each of the child’s removals reported in paragraph (d)(1). Comment: One state recommended adding whether a legal guardian is a child’s relative as a response option because in the proposal, both ‘‘legal guardian’’ and ‘‘child’s relative’’ are defined to exclude the other choice, even though the legal guardian may be a child’s relative. Other homelessness advocacy groups suggested adding ‘‘homeless’’ as a separate response option because they feel that data on homelessness is very important and relevant to collect to get a more detailed picture of where youth running away from system involvement are running to. Response: We agree with the suggestion to add ‘‘relative legal guardian’’ as a response option to distinguish between a guardian who is In paragraph (d)(6), we require the title IV–E agency to report all of the circumstances surrounding the child and family at each removal reported in paragraph (d)(1) from a list of 35 circumstances. The agency must report all child and family circumstances that are present at the time of each removal, including the circumstances that contributed to the decision to place the child into foster care. We modified the regulation by revising the name of two circumstances at removal. In paragraph (d)(6)(xi) we revised the name of the circumstance from ‘‘caretaker’s alcohol abuse’’ to ‘‘caretaker’s alcohol use’’ and in paragraph (d)(6)(xii) we revised the name of the circumstance from ‘‘caretaker’s drug abuse’’ to ‘‘caretaker’s drug use.’’ We did not change the definition of the data element. These language changes are based on language guidelines (https:// www.whitehouse.gov/ondcp/changingthe-language-draft) recently released by the White House Office of National Drug Control Policy that are designed to reduce the harmful stigma associated PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 Section 1355.44(d)(5) Authority for Placement and Care Responsibility In paragraph (d)(5) we require the title IV–E agency to indicate, for each of the child’s removals, whether the title IV– E agency’s authority for placement and care responsibility of the child was based on a court order. We did not receive substantive comments to this data element and have mostly retained the language as proposed in the 2015 NPRM, clarifying only that we intended ‘‘guardian’’ to refer to ‘‘legal guardian’’. Section 1355.44(d)(6) Child and Family Circumstances at Removal E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations with substance use disorders and addiction. We also modified the regulation by adding two circumstances at removal (paragraphs (d)(6)(xxxii) and (d)(6)(xxxiii)) so that we can identify children who are under a title IV–E agreement for title IV–E foster care maintenance payments. A commenter to the 2015 NPRM suggested that we add a data element allowing title IV–E agencies to specify children reported to AFCARS who are under title IV–E agreements. We have also received this suggestion from several states during AFCARS Assessment Reviews. We believe that the best way to address these comments is to add a circumstance at removal that title IV–E agencies may indicate if this situation applies for a child. We believe this will lead to more accurate reporting and analysis of the appropriate children. In addition, this will allow us to clearly identify when an Indian child is under the state title IV–E agency’s placement and care responsibility versus receiving a title IV–E foster care maintenance payment under a title IV–E agreement. We believe this information, along with the ICWA-related data elements state title IV–E agencies are now required to report will provide a clearer picture of the AFCARS out-of-home care reporting population. We included separate circumstances at removal for title IV–E agreements with another public agency and title IV–E agreements with an Indian tribe to better inform which title IV–E agreement the child is reported under and provide clarity for title IV–E agencies on who is to be included in the out-of-home care reporting population. Comments: Several commenters suggested adding ‘‘sex trafficking victim’’ as a circumstance at removal. Response: We agree with the suggestions to add ‘‘sex trafficking victim’’ as a circumstance and have added it as paragraph (d)(6)(xxviii). This will inform us whether the child is a sex trafficking victim at the time the child entered the out-of-home care reporting population. The requirements to collect sex trafficking information in paragraphs (d)(7) and (d)(8) relate to a child who was a victim prior to or while in foster care, which is designed to meet statutory reporting requirements. Comment: One commenter suggested adding ‘‘prenatal substance exposure’’ as a circumstance at removal. Response: We did not add ‘‘prenatal substance exposure’’ as a child and family circumstance at removal because we already have response options ‘‘prenatal alcohol exposure’’ and ‘‘prenatal drug exposure.’’ VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 Comment: Advocacy organizations suggested adding immigration-related response options as child and family circumstances at removal stating that a child’s immigration status is important to understand the barriers and services to support this population. They also noted that an unintended consequence of immigration enforcement can be the separation of detained parents from their children. Response: We were persuaded by commenters who suggested it was important to know when a circumstance at removal is that the parent was detained or deported for immigration reasons and added ‘‘parental immigration detainment or deportation’’ as a child and family circumstance at removal to paragraph (d)(6)(xxix). Commenters pointed out that this information is important in order to assess the critical services that may be required to support the child and the family. In addition, it is important to understand what barriers exist for the child and family. We removed the data elements from the 2015 NPRM proposal in paragraphs (b) and (c) to collect whether the child and parents were born in the U.S. for the reasons noted by many commenters who opposed them and instead require that agencies report this circumstance at removal. We did not add a data element on a child’s immigration status because that information is not needed at the federal level since agencies at the state, tribal, and local level determine a child’s eligibility for services. Comment: Advocates and organizations representing the homeless suggested adding many separate circumstances at removal related to homelessness stating that data on homelessness is important and relevant to collect. Recommendations included types of homelessness habitations and particular family situations such as: ‘‘places not meant for human habitation’’ (i.e., abandoned buildings); ‘‘couch-surfing’’; ‘‘family is living in a shelter or on the streets’’; ‘‘family home is overcrowded’’; and ‘‘family home is hazardous condition.’’ Response: We agree with the suggestions to add ‘‘homelessness’’ as a circumstance and have added it as paragraph (d)(6)(xxxiv). Such information can help agencies identify services and support for children and families. We define homelessness consistent with the definition used in the National Youth in Transition Database (NYTD) at 1356.83(g)(49). Comment: Commenters expressed confusion on why we provided domestic violence as a child and family circumstance at removal stating that the PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 90549 reason for removal would be harm to the child. Other commenters suggested that we should modify the domestic violence circumstance to require agencies to report intimate partner violence experienced or perpetrated by a child of any age and not only those who are eighteen years of age and older. Response: We appreciate the suggestions to revise this circumstance at removal and revised it to make it more consistent with the definition of domestic violence in the Family Violence Prevention and Services Act (FVPSA). In response to the confusion on why we provided domestic violence as a child and family circumstance at removal, we noted in the 2015 NPRM that the agency must report all of the circumstances that are present at the time of the child’s removal, in addition to the circumstances or reasons for the child’s removal and placement into foster care. Comment: In the 2015 NPRM we solicited comments on whether we should collect information on LGBTQ youth, and if so, what information. Several commenters pointed out the unique plight of LGBTQ youth in foster care stating that research indicates that LGBTQ youth are disproportionately represented within the child welfare system, experience high rates of family rejection, and experience unique challenges to their personal safety and stability. Response: We support further understanding of LGBTQ youth in foster care and their experiences while in foster care. Such information can help agencies improve their supports and services to these young people. We included a circumstance at removal in paragraph (d)(6)(xxx) as to whether there is ‘‘family conflict related to the child’s sexual orientation, gender identity, or gender expression’’ to aid us in recognizing the needs and experiences of LGBTQ youth who enter foster care. Knowing whether family conflict regarding the child’s sexual orientation, gender identity, or gender expression was a circumstance at the child’s removal may allow the title IV– E agency to more accurately assess the child and plan for the child’s safety, permanency, and well-being while in foster care. Comment: National advocacy/public interest groups suggested that we add educational neglect and unaccompanied minor as child and family circumstances at removal. Response: We agree it is important to capture whether educational neglect is a child and family circumstance at removal and included it. We defined ‘‘educational neglect’’ based on the E:\FR\FM\14DER3.SGM 14DER3 90550 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations American Humane Association definition as ‘‘alleged or substantiated failure of a parent or caregiver to enroll a child of mandatory school age in school or provide appropriate home schooling or needed special educational training, thus allowing the child or youth to engage in chronic truancy.’’ We did not include ‘‘unaccompanied minor’’ as one of the circumstances at removal since the child’s immigration status is irrelevant to their placement in foster care. We did, however, include a circumstance at removal of ‘‘parental immigration detainment or deportation’’ to paragraph (d)(6)(xxix). Section 1355.44(d)(7) Victim of Sex Trafficking Prior To Entering Foster Care In paragraph (d)(7), we require the title IV–E agency to report whether the child had been a victim of sex trafficking before the current out-ofhome care episode. If so, in paragraphs (d)(7)(i) and (d)(7)(ii) we require the title IV–E agency to indicate whether the agency reported each instance to law enforcement and the dates of each report. Comment: One commenter asked if the agency should report this information for a time prior to the title IV–E agency’s involvement with the child or family. Response: Yes, the responses to paragraphs (d)(7)(i) and (d)(7)(ii) require the title IV–E agency to report about victims of sex trafficking prior to entering foster care and prior to any agency involvement. We have retained the proposed rule language with minor edits. sradovich on DSK3GMQ082PROD with RULES3 Section 1355.44(d)(8) Victim of Sex Trafficking While in Foster Care In paragraph (d)(8), we require the title IV–E agency to report whether the child was a victim of sex trafficking while in out-of-home care during the current episode. If so, in paragraphs (d)(8)(i) and (d)(8)(ii) we require the title IV–E agency to indicate whether the agency reported each instance to law enforcement and the dates of each report. We have retained the proposed rule language with minor edits. Comment: A commenter sought clarification on whether the agency should report a date the report was made to law enforcement if an agency other than the title IV–E agency made the report. Response: No, the agency reports on whether or not the title IV–E agency itself made the report to law enforcement. We modified the regulation to make this clearer. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 Comment: Many commenters asked if it will be possible for the agency to report data on multiple instances of sex trafficking that may have occurred during the report period. Another commenter suggested that we include sex trafficking as a child and family circumstance at the time of removal. Response: We agree with the suggestion to add sex trafficking as a response option in paragraph (d)(6) Child and family circumstances at removal. Because this information is to be reported as it relates to each removal episode and is not information that is to be overwritten, we have moved it to, the ‘‘removal’’ section of the final rule and specified that each instance of sex trafficking, report to law enforcement, and date must be reported. In addition, we modified the language and location of these elements to allow agencies to report multiple instances of sex trafficking. We believe these changes clarify many of the questions raised by commenters. Comment: Organizations representing tribal interests noted that there are federal laws and policy barriers that prevent tribes from submitting any criminal or civil data to certain national databases, therefore tribes should be allowed to indicate they were not authorized or allowed to report information about sex trafficking to law enforcement. Response: Title IV–E agencies are only required to report in AFCARS whether or not they reported a child that they identified as a sex trafficking victim to law enforcement. Therefore, in the instance where the tribe was prohibited by federal law or otherwise to make a report to law enforcement and therefore did not make a report the tribe would indicate ‘‘no.’’ This data element is not a mandate on the tribe to make a report of sex trafficking to law enforcement, but to indicate in AFCARS whether or not they made a report. Comment: We received several other suggestions. One organization suggested we provide greater guidance and clarity about child victims of sex trafficking when they run away from foster care; several commenters suggested including additional elements, including health and mental health services a child receives related to sex trafficking, whether a sex-trafficking victim was criminally charged, had been homeless, missing or a runaway. Further, several commenters suggested that we include this information in a different data collection system, the National Child Abuse and Neglect Data System (NCANDS). Response: We examined the suggestions to add data elements PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 regarding victims of sex trafficking, but have not made further changes. We do not have a specific use for the additional detailed information the commenters requested as we are requiring reporting on sex trafficking victims to meet statutory requirements for reporting this information to Congress per section 105 of Public Law 113–183 and for including this information in AFCARS per section 479(c)(3)(E) of the Act. In addition, the statute mandates that this specific sex trafficking victim data we are requiring title IV–E agencies to report be included in AFCARS and not NCANDS. However, effective May 29, 2017, Child Abuse Prevention and Treatment Act (CAPTA) state grant recipients must report, to the maximum extent practicable, the number of children determined to be victims of sex trafficking (section 106(d)(17) of CAPTA). Section 1355.44(e) Living Arrangement and Provider Information In paragraph (e), we require that the title IV–E agency report information on each of the child’s living arrangements for each out-of-home care episode. We revised some of the proposed data elements as suggested by commenters, integrated data elements relating to ICWA placement preferences proposed in the 2016 SNPRM, and removed others as follows: • Removed a data element requiring agencies to report the total number of children who are living with their minor parent in each living arrangement. We instead require agencies to report whether the child and his/her child(ren) are placed together at any point during the report period in paragraph (b). • Removed the data element requiring agencies to report the assistance that supports each of the child’s living arrangements. We merged this list of assistance with the data element Child financial and medical assistance in paragraph (b). • Removed a data element requiring agencies to report the total per diem amount of the title IV–E foster care maintenance, adoption assistance, or guardianship assistance payment that the child is eligible for or received in response to comments. Commenters stated that reporting a child’s eligibility for a funding source, and the amount for which the child is eligible, when a payment has not actually been made creates the potential for inaccurate data. In addition a national organization representing state child welfare agencies commented that reporting these data elements outweighs its usefulness. • Removed the requirement the title IV–E agency report whether the child is E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations receiving the following types of services if placed in a non-foster family home living arrangement: Specialized education, treatment, counseling, and other services. Some commenters noted that collecting this service data would be difficult and costly, other commenters pointed out that this requirement is not well defined, and it is unclear how ACF would use this data. Section 1355.44(e)(1) Date of Living Arrangement In paragraph (e)(1), we require the title IV–E agency to report the dates of placement for each of the child’s living arrangements for each out-of-home care episode. We received no comments and have retained the 2015 NPRM proposed rule language. sradovich on DSK3GMQ082PROD with RULES3 Section 1355.44(e)(2) Foster Family Home In paragraph (e)(2), we require the title IV–E agency to report whether each of the child’s living arrangements is a foster family home. We received no comments and have made only minor conforming changes to this paragraph. Section 1355.44(e)(3) Foster Family Home Type In paragraph (e)(3), we require the title IV–E agency to report whether each type of foster family home, from a list of six, applies for each foster family home reported. These are: Licensed home, therapeutic foster family home, shelter care foster family home, relative foster family home, pre-adoptive home, or kin foster family home. Comment: Several commenters supported the inclusion of a response option of ‘‘kin foster family home’’ but were concerned that workers will be confused about who should be included in this category and misreport data. Many agencies define ‘‘kin’’ to include relatives by blood, marriage or adoption, in addition to what is frequently referred to as ‘‘fictive kin’’ and this could lead to worker confusion about when to indicate the response option ‘‘relative foster family home’’ versus ‘‘kin foster family home.’’ Thus, commenters suggested that we revise the definition of ‘‘kin foster family home’’ to specifically note that the child is not related to the foster parent(s) by biological, legal or marital connection. Commenters made similar comments for the data elements Child’s relationships to the foster parent(s) in paragraph (e)(13) and Child’s relationship to the adoptive parent(s) or guardian(s) in paragraph (h)(2). Response: We agree with the suggestion to modify the definition of ‘‘kin foster family home’’ so it now VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 specifies that the child is not related to the foster parent by a ‘‘biological, legal or marital connection.’’ The revised definition reads: ‘‘The home is one in which there is a kin relationship as defined by the title IV–E agency, such as one where a psychological, cultural or emotional relationship between the child or the child’s family and the foster parent(s) and there is not a legal, biological, or marital connection between the child and foster parent.’’ We also made a similar modification to the definition of ‘‘kin’’ in the data elements Child’s relationships to the foster parent(s) in paragraph (e)(13) and Child’s relationship to the adoptive parent(s) or guardian(s) in paragraph (h)(2). The remaining foster family home type definitions are retained as proposed in the 2015 NPRM. Section 1355.44(e)(4) Other Living Arrangement Type In paragraph (e)(4), we require the title IV–E agency to report whether a child who is not placed in a foster family home is placed in one of the following thirteen living arrangements: Group home-family-operated, group home-staff-operated, group home-shelter care, residential treatment center, child care institution, child care institutionshelter care, supervised independent living, juvenile justice facility, medical or rehabilitative facility, psychiatric hospital, runaway, whereabouts unknown and placed at home. We retained the response options as proposed in the 2015 NPRM. Comment: A commenter requested definitions for each of the other living arrangement types. Response: Each response option for the types of other living arrangements is explained in detail in paragraph (e)(4) of the regulation text. For example ‘‘residential treatment center’’ is defined as a facility that has the purpose of treating children with mental health or behavioral conditions; ‘‘supervised independent living’’ is defined as where the child is living independently in a supervised setting; and ‘‘medical or rehabilitative facility’’ is defined as where an individual receives medical or physical health care, such as a hospital. Comment: One commenter suggested that title IV–E agencies have the option of classifying a ‘‘group home-family operated’’ as a type of foster family home. Also, a national organization representing state child welfare agencies commented that ‘‘group home family operated’’ and ‘‘group home staff operated’’ are different across jurisdictions and may be confusing to agencies. PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 90551 Response: We recognize there are variations in how agencies license and approve group homes and will provide technical assistance to title IV–E agencies on a case by case basis on how to categorize group home living arrangements in their jurisdiction for AFCARS reporting purposes. Comment: One commenter asked if medical and rehabilitative facilities include children in a hospital for illness. The commenter also asked if psychiatric hospitals include acute care (e.g., three to five days). Response: Yes, a ‘‘medical or rehabilitative facility’’ is one where a child receives medical or physical health care, and includes a hospital. Paragraph (e) includes options for where a child is currently placed and a time frame is irrelevant as the title IV–E agency must to report all living arrangements regardless of length of stay. We will work with title IV–E agencies on reporting children in these facilities as needed upon implementation. Section 1355.44(e)(5) Private Agency Living Arrangement In paragraph (e)(5), we require the title IV–E agency to report whether each of the child’s living arrangements is licensed, managed, or run by a private agency. We received no comments on this data element and have retained the 2015 NPRM proposed rule language. Section 1355.44(e)(6) Location of Living Arrangement In paragraph (e)(6), we require that the title IV–E agency report the jurisdiction of the child’s living arrangement, specifically whether the child is placed within or outside of the reporting agency’s jurisdiction. The agency must also indicate if the child ran away or his or her whereabouts are unknown. We received no comments on this data element and have retained the 2015 NPRM proposed rule language with minor clarifying edits. Section 1355.44(e)(7) Jurisdiction or Country Where Child Is Living In paragraph (e)(7), we require the title IV–E agency to report the name of the state, tribal service area, Indian reservation or country where the title IV–E agency placed the child for each living arrangement, for children placed outside their jurisdiction. We received no substantive comments on this data element but added a sentence that IV– E agencies must report the information in a format according to ACF’s specifications to conform with this revision throughout the rule. We will E:\FR\FM\14DER3.SGM 14DER3 90552 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 work with title IV–E agencies on how to report this information. Section 1355.44(e)(8) Available ICWA Foster Care and Pre-Adoptive Placement Preferences In paragraph (e)(8), if the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), we require that the state title IV–E agency indicate which of the foster care and pre-adoptive placements from a list of five are willing to accept placement of the Indian child. The five placements options are: 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; and a placement that complies with the order of preference for foster care or pre-adoptive placements established by an Indian child’s tribe, in accordance with 25 U.S.C. 1915(c). This is similar to paragraph (i)(15) as proposed in the 2016 SNPRM. Comment: The national organization representing state child welfare agencies suggested we eliminate the requirement for the state to report on the availability of foster care placements that meet ICWA placement preferences stating that it is not essential. One state, citing burden, also recommended that we eliminate this data element because other information collected on foster care placement preferences is more salient. Another state sought clarification on whether this data element is asking a broad question about the availability of foster care providers or if it is child specific and suggested simplifying the information to only indicate with whom the child is placed and not availability. Another suggested revising the element to indicate all that apply rather than asking for yes/no responses. One tribe was concerned that the language ‘‘were available to accept placement’’ is subjective. They suggested revising the language as follows: ‘‘were pursued to accept placement pursuant to subsection 13(xi).’’ Response: We were not persuaded to remove the data element indicating the availability of foster care placements that meet ICWA’s preferences nor make any of the other recommended changes in the final rule. No tribes, national tribal organization, or national child welfare organizations suggested VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 removing or modifying data elements related to the availability of homes that meet ICWA foster or pre-adoptive placement preferences. However, we modified the term ‘available’ to ‘willing’ to be consistent with the adoption placement preference data element at paragraph (h), although we presume that any home that meets ICWA placement preferences that is willing to foster the Indian child is also available, and that a home that meets ICWA placement preferences but is unwilling to foster the Indian child is unavailable. The option to use terminology ‘‘check all that apply’’ versus responding with ‘‘yes’’ or ‘‘no’’ is an implementation issue that does not require a regulation change and we will provide technical assistance on this as needed. The availability of foster care placements that meet ICWA’s preferences is critical for meeting the purposes of ICWA. This information is essential for ACF to determine whether resources are needed for recruitment to increase the availability of AI/AN homes that can meet ICWA’s placement preferences. Under the BIA’s regulations at 25 CFR 23.132, whether a home is available is not a subjective state title IV–E agency determination. Rather it is evidence offered by the state title IV–E agency to the court that there is good cause to deviate from ICWA’s placement preferences in a particular case where there is also evidence that the state title IV–E agency conducted a diligent search to identify a placement that meets the preferences (25 CFR 23.132). Comment: One state commented that at the time of placement, the agency does not exhaust all possible relative placements for any child, so they are unclear which relatives ACF expects to be included, noting that their information system would have to be modified to include placement preference elements. Response: We’d like to clarify the data element, as it does not require the state to report whether they exhausted all relative placements. The state is to indicate ‘‘yes’’ or ‘‘no’’ whether there was a member of the Indian child’s extended family willing to provide a foster care or pre-adoptive placement. Such a member would meet the placement preferences of ICWA in 25 U.S.C. 1915(b). Section 1355.44(e)(9) Foster Care and Pre-Adoptive Placement Preferences Under ICWA In paragraph (e)(9) if the state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), we require that the state title IV–E agency indicate whether PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 each of the Indian child’s placements (indicated in paragraph (e)(1)) meets the placement preferences of ICWA at 25 U.S.C. 1915(b) by indicating with whom the Indian child is placed from a list of six response options. This is similar to paragraph (i)(16) as proposed in the 2016 SNPRM, except that we changed the response option of ‘‘none’’ to ‘‘placement does not meet ICWA placement preferences.’’ Comment: The national organization representing state child welfare agencies suggested we reduce the data elements by asking only whether the child was placed in compliance with the placement preferences and if no, whether a court make a finding of good cause to deviate from the placement preferences. Response: We did not make any changes in response to the comment to only require reporting on whether or not the child is in a foster care or preadoptive placement that meets the ICWA placement preferences. We seek information on the specific placement because the requirements around placement preferences in ICWA are a key piece of the protections mandated by ICWA. Placement preferences serve to protect the best interests of Indian children and promote the stability and security of families and Indian tribes by keeping Indian children with their extended families or in Indian foster homes and communities. Factors unique to Indian children, including the availability of American Indian foster homes, influence decisions about the placement of Indian children. Comment: One state recommended that we add a response option for ‘‘group home approved or operated by Indian tribe/organization.’’ Response: We considered this suggestion but decline to make a change because our response options reflect the foster care placement preference language in ICWA at 25 U.S.C. 1915(b). Comment: A tribe suggested including if the tribe agreed with the application of the placement preferences. Response: We are not making a change as a result of this comment. If the tribe has established by resolution a different order of preference than that specified in ICWA, the tribe’s placement preferences apply subject to requirements of 25 U.S.C. 1915(c) and 25 CFR 23.131 and these placements are captured in AFCARS. Comment: Several organizations suggested that we clarify whether the placements were tribally licensed or approved homes or another Indian family guardian home approved by the state. E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations Response: We considered this suggestion but decline to make additional changes because our response options reflect the foster care placement preference language in ICWA in 25 U.S.C. 1915(b). sradovich on DSK3GMQ082PROD with RULES3 Section 1355.44(e)(10) Good Cause Under ICWA In paragraph (e)(10), if a state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), and the state title IV–E agency indicated ‘‘placement does not meet ICWA placement preferences’’ in paragraph (e)(9), we require the state title IV–E agency to 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 (25 U.S.C. 1915(b)), or the Indian child’s tribe, if the placement preferences for foster care and pre-adoptive placements were not followed. This is similar to paragraph (i)(17) as proposed in the 2016 SNPRM, except that we updated the language consistent with 25 CFR 23.132. Comment: The national organization representing state child welfare agencies suggested that we remove the language ‘‘as indicated on court order’’ from this data element because it could be interpreted in different ways and may not accurately reflect the court orders finding of good cause. Response: We modified the regulation text so that the final rule does not include a requirement for the state to report only if the court order included the good cause determination. This is consistent with the BIA’s regulations at 25 CFR 23.132(c). The data element as revised requires states to 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 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). This provides states with multiple options for obtaining the information. Section 1355.44(e)(11) Basis for Good Cause In paragraph (e)(11), if a state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), and the state title IV–E agency indicated ‘‘yes’’ to paragraph (e)(10), we require that the state title IV–E agency indicate the state court’s basis for the determination of good cause to depart from the ICWA placement preferences from a list of five response options. This is similar to paragraph (i)(18) as proposed in the VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 2016 SNPRM except that we updated the language consistent with 25 CFR 23.132. Comment: A tribe stated that they are not clear what the response option of ‘‘other’’ indicates and recommended that we clarify the response option. One state recommended adding a list of ‘‘extraordinary physical or emotional needs of the Indian child’’ to the good cause reasons. Response: We removed the ‘‘other’’ option and modified the list of reasons for the state court’s basis for the determination of good cause to depart from ICWA placement preferences in ICWA to be consistent with 23.132(c) of the BIA regulations. The final regulation no longer includes the response option of ‘‘other.’’ Section 1355.44(e)(12) Marital Status of the Foster Parent(s) In paragraph (e)(12), we require the title IV–E agency to report information regarding the marital status of the each of the foster parent(s) where the child is placed. While we received no comments on this data element, we revised the final rule to be consistent with reporting the marital status of adoptive parents and legal guardians in paragraph (h). As we also explain in paragraph (h), several commenters recommended that we revise the marital status response options. As such, the response options will be as follows: Married couple, unmarried couple, separated, and single adult. We replaced the response options of ‘‘single male’’ and ‘‘single female’’ with ‘‘single adult.’’ Section 1355.44(e)(13) Child’s Relationships to the Foster Parent(s) In paragraph (e)(13), we require the title IV–E agency to report the type of relationship between the child and the foster parent(s) for each foster family home in which the child is placed, from one of seven options: Paternal grandparent(s), maternal grandparent(s), other parental relative(s), other maternal relative(s), non-relative(s), kin, or sibling(s). Comment: One commenter suggested that we modify the term ‘‘kin’’ when describing the relationship between the child and foster parent to make clear that the child is not related to the foster parent(s) by biological, legal or marital connection. Commenters made similar comments for the data elements Foster family home type in paragraph (e)(3) and Child’s relationship to the adoptive parent(s) or guardian(s) in paragraph (h)(2). Response: We appreciate the suggestion and modified the term ‘‘kin’’ to indicate that there is not a legal, PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 90553 biological, or marital connection between the child and foster parent. We also made a similar modification to the definition of ‘‘kin’’ in the data elements Foster family home type in paragraph (e)(3) and Child’s relationship to the adoptive parent(s) or guardian(s) in paragraph (h)(2). Comment: One commenter suggested that we add aunt and uncle as response options for the child’s relationship to the foster parents. Response: If a child is placed with an aunt or uncle, the level of information we are seeking is whether it was a maternal or paternal relative, and are not seeking more detailed information than that. We did not make changes in response to the suggestion. Section 1355.44(e)(14) and (e)(20) Year of Birth for Foster Parent(s) In paragraphs (e)(14) and (e)(20), we require the title IV–E agency to report the year of birth of each of the child’s foster parent(s). We received no comments on this data element and have retained the language as proposed in the 2015 NPRM. Section 1355.44(e)(15) and (e)(21) Foster Parent(s) Tribal Membership In paragraphs (e)(15) and (e)(21), we require the title IV–E agency to report whether the foster parent(s) is a member of an Indian tribe. These are new data elements not previously proposed in the 2015 NPRM or 2016 SNPRM. Additionally, we are collecting the same information in paragraph (h) regarding adoptive parents and legal guardians. It was clear as we analyzed the comments to the 2016 SNPRM that including data elements that inquire about the tribal membership of the foster parent(s) is information that is in line with our goals to expand the information we collect on foster care providers for children in outof-home care. We believe that this information will provide more insight on meeting the requirements in ICWA on foster care placement preferences and will inform recruitment of foster care providers that meet the needs of AI/AN children in out-of-home care. Section 1355.44(e)(16) and (e)(22) Race of Foster Parent(s) In paragraphs (e)(16)(i) through (e)(16)(vii) and (e)(22)(i) through (e)(22)(vii), we require the title IV–E agency to report the race of each of the foster parent(s) which the child has been placed. Comment: Organizations representing tribal interests recommended we include whether: (1) The foster parent have origins in any of the original peoples of North and South America; (2) E:\FR\FM\14DER3.SGM 14DER3 90554 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations whether the foster parent is a member of a federally recognized Indian tribe and; if so, (3) the name of the tribe. Response: The response options are consistent with the OMB Revised Standards for the Classification of Federal Data on Race and Ethnicity, and therefore, we are unable to make a change. These definitions can be found at: http://www.whitehouse.gov/omb/ inforeg/re_guidance2000update.pdf. While we did not revise this data element, at section 1355.44(e)(16) and (e)(22) we require the state title IV–E agency report whether the foster parent(s) is a member of an Indian tribe in paragraphs (e)(15) and (e)(21). sradovich on DSK3GMQ082PROD with RULES3 Section 1355.44(e)(17) and (e)(23) Hispanic or Latino Ethnicity for Foster Parent(s) In paragraphs (e)(17) and (e)(23), we require the title IV–E agency to report the Hispanic or Latino ethnicity of the foster parent(s), if applicable. We received no comments on this data element. Section 1355.44(e)(18) and (e)(24) Gender of Foster Parent(s) and (e)(19) and (e)(25) Foster Parent(s) Sexual Orientation In paragraphs (e)(18) and (e)(24), we added a requirement for the title IV–E agency to indicate whether each foster parent self identifies as ‘‘male’’ or ‘‘female.’’ In paragraph (e)(19) and (e)(25), we added a requirement that the title IV–E agency report whether the foster parent(s) self identifies as ‘‘straight or heterosexual,’’ ‘‘gay or lesbian,’’ ‘‘bisexual,’’ ‘‘don’t know,’’ ‘‘something else,’’ or ‘‘declined’’ if the second foster parent declined to identify his/her status. Comment: While we requested input in the 2015 NPRM on whether to require title IV–E agencies to collect LGBTQrelated data in AFCARS on children, we received comments about collecting sexual orientation data on foster and adoptive parents from state title IV–E agencies, national advocacy/public interest groups and other organizations. Those that supported collecting data on the foster parents’ sexual orientation were primarily advocacy organizations representing LGBTQ interests and generally noted that the LGBTQ community remains an untapped resource for finding permanent families for children and youth in foster care. They stated that some of these prospective parents face barriers when they attempt to foster or adopt because they identify as LGBTQ. They further commented that including this information in AFCARS will promote VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 routine discussions between prospective foster parents and title IV–E agencies, normalize conversations around sexual orientation, and signal increased acceptance of LGBTQ caretakers. State title IV–E agencies expressed some of the same concerns with collecting sexual orientation data on foster parents as they did for children in foster care: Privacy concerns and implications of having this information in a government record; concerns that the data may be used in a discriminatory way; and they expressed the importance of proper staff training for data elements on sexual orientation. Response: We were persuaded by the commenters who suggested data elements in AFCARS on a foster parent’s sexual orientation and require agencies to report when a foster parent self identifies as ‘‘straight or heterosexual,’’ ‘‘gay or lesbian,’’ ‘‘bisexual,’’ ‘‘don’t know,’’ ‘‘something else,’’ or ‘‘declined.’’ We anticipate that these data elements will assist title IV– E agencies in recruiting, training, and retaining an increased pool of foster care providers who can meet the needs of children in foster care. We specifically added a decline response option to respond to the privacy issues raised by commenters. Information on sexual orientation should be obtained and maintained in a manner that reflects respectful treatment, sensitivity, and confidentiality. Several state and county agencies, advocacy organizations and human rights organizations have developed guidance and recommended practices for how to promote these conditions in serving LGBTQ youth in adoption, foster care and out-of-home placement settings. ACF provides state and tribal resources for Working With LGBTQ Youth and Families at the Child Welfare Information Gateway. The following links are provided as general examples of such guidance (Minnesota and California examples). ACF will provide technical assistance to agencies on collecting this information. Additionally, for the same reasons, we made corresponding changes in paragraph (h) related to the adoptive parent or legal guardian. We also made a minor change in reporting the foster parent’s gender, in that we require the title IV–E agency to indicate whether each foster parent self identifies as ‘‘male’’ or ‘‘female’’ and made the same change for the adoptive parent or legal guardian. Section 1355.44(f) Permanency Planning In paragraph (f), we require that the title IV–E agency report information related to permanency planning for children in foster care. We made several PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 revisions to this section from the 2015 NPRM to remove some proposed data elements that we describe below: • We removed the requirement for agencies to report concurrent planning information based on the comments from a national organization representing state child welfare agencies and several states. They suggested that this information is better captured at the case level and noted that since that concurrent planning is an optional practice that not all title IV–E agencies use, the information would not be useful at a national level. • We removed the requirement for agencies to report the reason(s) for permanency plan changes based on comments from a national organization representing state child welfare agencies and many state title IV–E agencies stating that the data element is too subjective, the response options are overly broad, the data element will not capture plans that change more than once during a report period, and the data is too qualitative for AFCARS and better analyzed at the case level. The commenters also said that reporting this information would be burdensome and training workers and monitoring data quality would be challenging. • We removed the requirement for agencies to report the purpose of each in person, face-to-face visit based on comments that this data element is not well defined, and that many visits involve multiple purposes and will not be well distinguished. • We removed the requirement for agencies to report whether the caseworker visited with the child alone. Several commenters were in support of this data element, however, the statutory requirement is for agencies to report whether a face-to-face visit has occurred within the calendar month and whether it occurred in the child’s residence. In addition, commenters indicated that collecting information on if a worker visits alone would be time consuming and it is not always appropriate for the caseworker to visit the child alone. • We removed the requirement that agencies indicate whether the contents of the transition plan apply based on comments that while the existence of the plan and its timing is knowable, reporting the provisions contained in the transition plan is unnecessary because the quality and relevance of a transition plan cannot be determined quantitatively. Section 1355.44(f)(1) and (2) Permanency Plan and Date In paragraph (f)(1), we require that the title IV–E agency report each E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations permanency plan for the child and in (f)(2) the date each plan(s) was established during each out-of-home care episode. There are six options: Reunify with parent(s) or legal guardian(s), live with other relatives, adoption, guardianship, and another planned permanent living arrangement. Comment: Two states sought clarification on how these elements apply to children who have runaway and whether the response options should be consistent with CFSR. Response: We require the permanency plan response options to be consistent with the law at section 475(5)(C) of the Act. The permanency plan options in the CFSR are broader and encompasses the discrete response options from AFCARS because AFCARS applies to all youth in the out-of-home care reporting population, which includes children for whom the title IV–E agency has placement and care responsibility but who have runaway or whose whereabouts are unknown at the time that the title IV–E agency receives placement and care responsibility for the child. Comment: Other commenters, including national advocacy/public interest groups and a private citizen, offered several suggestions, including: Adding data that addresses whether the child was consulted or participated in developing the permanency plan; about the visitation and services the agency provided during visits for children with a permanency plan of reunification; and adding a permanency plan response option for ‘‘waiting for adoption.’’ One commenter questioned the usefulness of this data at a federal level. Response: We reviewed these suggestions, however we did not make changes in response to the commenter’s suggestions This level of detail and specific case level information go beyond designating a child’s permanency plan and are not needed at the federal level to meet the requirements of section 479(c)(3) of the Act. Additionally, we currently collect the child’s most recent case plan goal in AFCARS. sradovich on DSK3GMQ082PROD with RULES3 Section 1355.44(f)(3) and (4) Periodic Review and Permanency Hearing Dates In paragraphs (f)(3) and (4), the title IV–E agency must report the date of each periodic review and the date of each permanency hearing (per section 475(5)(C) of the Act). We did not receive substantive comments on these data elements and have retained them as proposed in the 2015 NPRM. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 Section 1355.44(f)(5) Juvenile Justice In paragraph (f)(5), we require the title IV–E agency to report whether a juvenile judge or court found the child to be a status offender or adjudicated delinquent during the report period. Comment: Four states expressed concerns with our proposal for agencies to report specifically whether the court identified the child to be an ‘‘adjudicated delinquent’’ or a ‘‘status offender.’’ They cited concerns about training workers to ensure data quality and difficulty in distinguishing the proposed response option ‘‘adjudicated delinquent’’ from ‘‘status offender.’’ One organization representing state child welfare agencies suggested that agencies simply report whether or not the court found a child to be either a status offender or an adjudicated delinquent because distinguishing between the two is not necessary and will vary by and within jurisdictions. Response: We were persuaded by the commenters who said we did not need to distinguish the specific type of juvenile justice involvement for each child. As such, we revised the data element to require title IV–E agencies to report yes/no whether or not a court found the child to be a status offender or adjudicated delinquent, no longer requiring the agency to distinguish between the two. Section 1355.44(f)(6) and (7) Caseworker Visit Dates and Location In paragraphs (f)(6) and (f)(7), we require the title IV–E agency to report information on visits between the child’s caseworker and the child. In paragraph (f)(6), we require the title IV– E agency to report the date of each inperson, face-to-face visit between the caseworker and the child. In paragraph (f)(7), we require the title IV–E agency to report the location of each in-person visit between the caseworker and the child. Comment: A state asked if this data element pertains to visits during the reporting period, the removal episode, or the child’s lifetime involvement with child welfare services. Response: We’d like to clarify that the title IV–E agency must collect and report the date and other required information for each in-person, face-toface caseworker visit during each six month report period. Therefore, if the worker visits the child in-person, faceto-face each month during the six month report period, the agency will report the six dates and locations of the visits. Comment: One commenter questioned why we require the agency to report caseworker visit information for every case worker visit to a child. PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 90555 Response: We require agencies to collect and report the date and location of each in-person, face-to-face caseworker visit to meet the requirements in section 424(f) of the Act, which requires that 90 percent of children in foster care are visited on a monthly basis by their workers, and that the majority of the visits occur in the residence of the child. Comment: Several commenters recommended that we require agencies to also report: What went on during the caseworker visit; the types of services provided by the caseworker during the visit; and whether coaching or mental health treatment was provided during the visit. One commenter suggested that we also collect information on a child’s visits with biological parents. Response: We are retaining the requirements for the title IV–E agency to report the date and location of each inperson, face-to-face caseworker visits to meet the statutory requirements in section 424(f) of the Act. Therefore, we did not make any additional changes to include the suggested information as we do not have a specific use for it and will not require the agency to collect information not required by the law. Section 1355.44(f)(8) and (f)(9) Transition Plans In paragraph (f)(8), we require the title IV–E agency to report whether the child has a transition plan that meets the requirements of section 475(5)(H) of the Act. If the child has a transition plan, the title IV–E agency must report the plan date in paragraph (f)(9). Comment: A national organization representing state child welfare agencies and states objected to reporting the content of the transition plan. They indicated that while the existence of the plan and its timing is knowable, reporting the provisions contained in the transition plan is unnecessary because the quality and relevance of a transition plan cannot be determined quantitatively. Other national advocacy/ public interest groups supported collecting data we proposed on transition plans. Response: We were persuaded by the comments and removed the data element. Commenters: One state asked whether agencies must report transition plans that are developed before the 90-day period before the youth turns age 18 (or greater age). Response: Yes, agencies must report a transition plan developed before the 90day period. We amended the regulation text to make it clear that agencies should report all plans developed in E:\FR\FM\14DER3.SGM 14DER3 90556 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 response to the statute, even if it is before the 90 day period. Commenters: An organization representing tribal interests suggested that we collect information about whether Indian children have information on and access to tribal specific resources and services for youth and young adults. Response: While there is not requirement for transition plans to be this detailed, agencies should be responsive to the individualized needs of a specific Indian child. Section 1355.44(f)(10) Active Efforts In paragraph (f)(10), if a state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), we require the state title IV–E agency to indicate whether the active efforts in each paragraph (f)(10)(i) through (f)(10)(xiii) ‘‘applies’’ or ‘‘does not apply.’’ The state title IV– E agency must indicate all of the active efforts that apply once the child enters the AFCARS out-of-home care reporting population per section 1355.42(a) through the child’s exit per paragraph (g)(1) of this section and the active efforts made to prevent removal prior to the child entering the out-of-home care reporting population. This is similar to paragraph (i)(13) as proposed in the 2016 SNPRM, however, we updated the language consistent with BIA’s regulation at 25 CFR 23.2. Comment: Many commenters suggested that the response options be updated consistent with BIA’s Guidelines and BIA’s regulations at 25 CFR 23.2 and several commenters suggested allowing state title IV–E agencies to incorporate active efforts as defined under state law. Response: We agree and revised the final rule to be consistent with the BIA regulations at 25 CFR 23.2, which contains the regulatory definition of active efforts. Section 1355.41(c) specifies that terms in ICWA for specified data elements mean the same as in ICWA at 25 U.S.C. 1903 and 25 CFR 23.2. As such, the state title IV–E agency must report if any of the active efforts listed in paragraphs (f)(10)(i) through (f)(10)(xiii) were provided prior to and during the child’s stay in out-ofhome care. The state title IV–E agency may report active efforts as defined under state law under the response option of ‘‘other active efforts tailored to the facts and circumstances of the case’’, as appropriate. Comment: Tribes and organizations representing tribal interests commented that data on active efforts is important to report to AFCARS because it impacts the individual child’s case and is a key VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 protection provided in ICWA. However, several commenters and the national organization representing state child welfare agencies do not support requiring the state title IV–E agency to report information on active efforts as it was proposed in the 2016 SNPRM. They recommended removing the data element because state title IV–E agencies already mirror the best practices that strengthen and ensure the safety of families by limiting the need to remove children from their homes and separating from parents, guardians or caregivers for early outreach and engagement to provide support and services for families before a removal is warranted. Several commenters believe that collecting information on the specific active efforts that were provided is more appropriate for a case review than for AFCARS data collection because these responses do not get to the quality of those efforts. Several commenters expressed concerns with the functionality of this data element for national reporting. One commenter expressed an issue with an absence of court orders expressly describing the active efforts and therefore state title IV– E agencies will not be able to accurately report this information. Response: We are not persuaded by these comments to revise the final rule because the ‘‘active efforts’’ requirement is a vital part of ICWA’s requirements. The preamble to the BIA’s final regulation at 25 CFR 23.2 details at length the reasons for and benefits of active efforts including that ICWA’s active efforts requirement continues to provide a critical protection against the removal and TPR of an Indian child from a fit and loving parent by ensuring that parents who are or may readily become fit parents are provided with service necessary to retain or regain custody of their child. Data about the frequency with which each active effort type is made will help develop policy, resources, and technical assistance to support states to employ a range of efforts that can meet the needs of Indian children in out-of-home care. Lastly, we revised the data element language to reflect BIA’s regulation at 23.2 and 23.120(a). Comment: One commenter requested clarification on whether the response options are based on the court identifying that the state title IV–E agency did one or more of the active efforts listed or whether it is the state title IV–E agency making a determination as to which active efforts were made. Response: The state must report the active efforts which the state title IV–E agency made throughout the child’s stay PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 in out-of-home care, which may or may not be documented in a court order. Comment: Commenters requested clarification on the terminology used in the active efforts examples, such as what ACF considers to be part of an ‘‘extended family,’’ how ACF defines the ‘‘most natural setting safely possible,’’ and how ‘‘regular visits’’ and ‘‘trial home visits’’ differs from regular caseworker contacts. Response: The list of active efforts in paragraphs (f)(10)(i) through (f)(10)(xiii) are examples of active efforts drawn from BIA’s definition of ‘‘active efforts’’ in 25 CFR 23.2. The BIA does not define the terms used in the examples and therefore, we will not define the terminology further. Consistent with BIA’s regulation at 25 CFR 23.2, to the extent possible, active efforts should be provided in a manner consistent with the prevailing social and cultural conditions of the Indian child’s tribe, and in partnership with the child, parents, extended family, and tribe. Comment: A commenter recommended adding data elements to capture whether the state title IV–E agency conducted or caused to be conducted a diligent search for the Indian child’s extended family members for assistance and possible placement, and if no extended family members are identified, whether the state title IV–E agency conducted a diligent search for other ICWA-compliant placement options. Response: We did not make changes to the response options based on this comment because we wanted to be consistent with the BIA’s regulation and examples of ‘‘active efforts’’ in 25 CFR 23.2. However, we added ‘‘extended family’’ to paragraph (f)(10)(v) to match the addition of this in paragraph (b). Comment: One commenter suggested that if siblings are not kept together, that the state title IV–E agency must report why the siblings were separated. The commenter stated that collecting this information would strengthen the data and create new opportunities to address the needs of Indian children in out-ofhome care. Two commenters suggest that because we proposed in the 2015 NPRM data elements related to siblings for all children in the out-of-home care reporting population, this data element should be removed. The commenter stated that keeping siblings together captures a goal that agencies attempt to achieve for all families. Response: Although information about siblings is collected elsewhere in the final rule for all children in the outof-home care reporting population, we did not make changes to the response options in paragraph (f)(10) based on E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations this comment because this data element is consistent with BIA’s regulation at 25 CFR 23.2. In the 2016 SNPRM, we proposed that title IV–E agencies report the date active efforts began in paragraph (i)(11), however after reviewing the comments we removed this proposed data element. Comment: The national organization representing state child welfare agencies recommended that ACF remove this data element because state agencies follow practice standards for early outreach and engagement to provide support and services for families before a removal is warranted. In addition, the organization recommended overall that we remove data elements that may be unreliable, potentially invalid, and that place unnecessary burdens. We also received a state comment requesting clarification and another state noted they did not currently collect this information. Response: We agree with the suggestion to remove the date active efforts began and revised the final rule accordingly. The BIA’s regulation at 23.107 specifies that ICWA applies when it is known or there is reason to know a child is an Indian child as defined in ICWA and that treatment as an Indian child continues until it is determined on the court record that the child does not meet the definition of an Indian child in ICWA. Section 1355.44(g) General Exit Information In paragraph (g), we require that the title IV–E agency must report when and why a child exits the out-of-home care reporting population. Section 1355.44(g)(1) Date of Exit In paragraph (g)(1), we require the title IV–E agency to report the date for each of the child’s exits from out-ofhome care, if applicable. We did not receive relevant comments on this data element and retained the 2015 NPRM proposed rule language. sradovich on DSK3GMQ082PROD with RULES3 Section 1355.44(g)(2) Exit Transaction Date In paragraph (g)(2), we require the title IV–E agency to report the transaction date for each exit date reported in paragraph (g)(1). The transaction date is a non-modifiable, computer-generated date which accurately indicates the month, day and year each response to paragraph (g)(1) was entered into the information system. We did not receive relevant comments on this data element and have retained the 2015 NPRM proposed rule language. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 Section 1355.44(g)(3) and (4) Exit Reason and Transfer to Another Agency In paragraphs (g)(3) and (4), we require the title IV–E agency to report the reason for each of the child’s exit(s) from out-of-home care, and if the exit reason is ‘‘transfer to another agency,’’ the agency type. Comment: We received several suggestions to modify the exit reason response options to: Identify the manner of a child’s death; change how a child who exits foster care for jail or prison is reported; add exit reasons to identify when a youth becomes ineligible for extended foster care; and when a youth voluntarily leaves extended foster care. A few states disagreed with some of our proposed response options for exit reason. Response: We made a minor change to remove the response option ‘‘other’’ proposed in the 2015 NPRM because based on our experience, we believe that the response options adequately reflect the reasons why children exit out-ofhome care and we do not need a response option of ‘‘other.’’ We do not need to revise or add other reasons because these exit reasons are designed to capture information about when and where a child exits out-of-home care, and are not intended to identify other specifics about the child’s exit. Comment: For the response option ‘‘transfer to another agency’’ in paragraph (g)(3), a commenter asked for clarification about the phrase ‘‘but not if the transfer is to a public agency, Indian Tribe, Tribal organization or consortium that has an agreement with a title IV–E agency under section 472(a)(2)(B) of the Act.’’ Response: We recognized that this language as proposed in the 2015 NPRM can be confusing because of variation in title IV–E agency policies and procedures for transfers and title IV–E agreements. Therefore, we revised the response option ‘‘transfer to another agency’’ in the regulation to be less specific than we proposed in the 2015 NPRM to read as follows: Indicate ‘‘transfer to another agency’’ if placement and care responsibility for the child was transferred to another agency, either within or outside of the reporting state or tribal service area. This revision will permit ACF to provide targeted technical assistance for case specific circumstances. Section 1355.44(h) Exit to Adoption and Guardianship Information In paragraph (h), we require that the title IV–E agency report information on the child’s exit from out-of-home care to a finalized adoption or legal guardianship. PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 90557 Comment: Several national advocacy/ public interest groups recommended that we add the following elements: ‘‘sex assigned at birth of adoptive parent(s) or legal guardian(s),’’ ‘‘gender identity of adoptive parent(s) or legal guardian(s),’’ ‘‘sex of adoptive parents/ legal guardians,’’ and ‘‘sexual orientation of adoptive parent(s) or legal guardian(s).’’ Response: In response to these suggestions, we removed the response options ‘‘single female’’ and ‘‘single male’’ and replaced them with ‘‘single adult.’’ We added new data elements on the gender of the adoptive parent(s) or legal guardian(s) with the other demographic information on adoptive parents and legal guardians. This will provide the gender of each adoptive parent or legal guardian separately from their marital status. The new data elements are in paragraphs (h)(7) for the first adoptive parent or legal guardian and (h)(13) for the second adoptive parent or legal guardian. These revisions are similar to revisions we made in response to comments regarding foster parent demographic information in paragraph (e). Section 1355.44(h)(1) Marital Status of the Adoptive Parent(s) or Guardian(s) In paragraph 1355.43(h)(1), the title IV–E agency must report the marital status of the adoptive parent(s) or legal guardian(s). Comment: We received several recommendations to revise the marital status response options, as well as a recommendation to remove this data element stating that there is no need for this level of detail at the national level. The commenters recommended revisions to the marital status response options here and the foster parent marital status response options in paragraph (e) or to include other response options, such as ‘‘separated’’ and ‘‘married, but adopting individually.’’ Response: We examined the suggestions and modified the marital status response options. We added the response options of ‘‘separated’’ and ‘‘married, but adopting or obtaining legal guardianship individually.’’ Since we added the response option ‘‘married, but adopting or obtaining legal guardianship individually,’’ we no longer need, and removed for the final rule, the instruction we included in the 2015 NPRM that instructed title IV–E agencies to ‘‘complete this data element even if only one person of the married or common law married couple is the adoptive parent or legal guardian of the child.’’ E:\FR\FM\14DER3.SGM 14DER3 90558 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations Section 1355.44(h)(2) Child’s Relationship to the Adoptive Parent(s) or Guardian(s) sradovich on DSK3GMQ082PROD with RULES3 In paragraph (h)(2), we require the title IV–E agency to report the relationship(s) between the child and his or her adoptive parent(s) or legal guardian(s) from eight options: Paternal grandparent(s), maternal grandparent(s), other paternal relative(s), other maternal relative(s), sibling(s), kin, nonrelative(s), and foster parent(s). Comment: Several commenters supported the inclusion of ‘‘kin’’ as a response option for this data element, but asked for clarification on the definition. Another commenter suggested that we not include ‘‘kin’’ as an option because it is confusing, overlaps with ‘‘non-relative’’ and is a colloquial term with varied meanings. Commenters stated that many agencies define ‘‘kin’’ to include relatives by blood, marriage or adoption, in addition to what is frequently referred to as ‘‘fictive kin’’ and this could lead to worker confusion about when to indicate the response option ‘‘kin’’ verse the other response options for relatives. Commenters made similar comments for the data elements Foster family home type in paragraph (e)(3) and Child’s relationships to the foster parent(s) in paragraph (e)(13). Response: We agree with the suggestion to modify the definition of ‘‘kin’’ so it now specifies that the child is not related to the adoptive parent or legal guardian by a ‘‘biological, legal or marital connection.’’ The revised definition reads: ‘‘The adoptive parent(s) or legal guardian(s) has a kin relationship with the child, as defined by the title IV–E agency, such as one where there is a psychological, cultural or emotional relationship between the child or the child’s family and the adoptive parent(s) or legal guardian(s) and there is not a legal, biological, or marital connection between the child and foster parent.’’ We also made a similar modification to the definition of ‘‘kin foster family home’’ in the data element Foster family home type in paragraph (e)(3) and Child’s relationships to the foster parent(s) in paragraph (e)(13). Section 1355.44(h)(3) and (h)(9) Date of Birth of Adoptive Parent(s) or Guardian(s) In paragraphs (h)(3) and (h)(9), we require the title IV–E agency to report each adoptive parent or legal guardian’s birthdate. We received no comments on these data elements and have retained the language as proposed in the 2015 NPRM. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 Section 1355.44(h)(4) and (h)(10) Adoptive Parent(s) Tribal Membership In paragraphs (h)(4) and (h)(10), we require the title IV–E agency to report whether the adoptive parent(s) or legal guardian is a member of an Indian tribe. These are data elements not previously proposed in the 2015 NPRM or 2016 SNPRM. Additionally, we are collecting the same information in paragraph (e) regarding foster parents. It was clear as we analyzed the comments to the 2016 SNPRM that including data elements that inquire about the tribal membership of the adoptive parent(s) or legal guardian is information that is in line with our goals to expand the information we collect on adoptive parents and guardians of children who exit out-of-home care to adoption or legal guardianship. We believe that this information will provide more insight on meeting the requirements to meet placement preferences under ICWA and will inform recruitment of providers that meet the needs of AI/AN children who exit out-of-home care to adoption or legal guardianship. Section 1355.44(h)(5) and (h)(11) Race of Adoptive Parent(s) or Guardian(s) In paragraphs (h)(5)(i) through (h)(5)(vii) and (h)(11)(i) through (h)(11)(vii), we require the title IV–E agency to report the race of each adoptive parent or legal guardian. Comment: Groups representing tribal interests recommended that we include whether the adoptive parent/legal guardian has origins in any of the original peoples of North and South America and if so whether the adoptive or guardian parent a member of a federally recognized Indian tribe and the name of the tribe, and if the child maintains tribal affiliation and community attachment. Response: The response options for race are consistent with the OMB Revised Standards for the Classification of Federal Data on Race and Ethnicity, and therefore, we are unable to make a change. These definitions can be found at: http://www.whitehouse.gov/omb/ inforeg/re_guidance2000update.pdf. While we did not revise this data element, we require at paragraphs 1355.44(h)(4) and (h)(10) that title IV–E agencies report whether the adoptive parent(s) or legal guardian is a member of an Indian tribe in paragraphs (h)(4) and (h)(10). Section 1355.44(h)(6) and (h)(12) Hispanic or Latino Ethnicity of Birth of Adoptive Parent(s) or Guardian(s) In paragraphs (h)(6) and (h)(12), we require the title IV–E agency to report PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 the Hispanic or Latino ethnicity of each adoptive parent or legal guardian. We received no comments on these data elements. Section 1355.44(h)(7) and (h)(13) Gender of Adoptive Parent(s) or Guardian(s), and (h)(8) and (h)(14) Adoptive Parent(s) or Guardian(s), Sexual Orientation In paragraphs (h)(7) and (h)(13), we require the title IV–E agency to indicate whether each adoptive parent(s) or legal guardian(s) self identifies as ‘‘male’’ or ‘‘female.’’ In paragraph (h)(8) and (h)(14), we require that the title IV–E agency report whether the adoptive parent(s) or legal guardian(s) self identifies as ‘‘straight or heterosexual,’’ ‘‘gay or lesbian,’’ ‘‘bisexual,’’ ‘‘don’t know,’’ ‘‘something else,’’ or ‘‘declined’’ if the second adoptive parent(s) or legal guardian(s) declined to identify his/her status. Comment: Although we requested input on whether to require title IV–E agencies to collect LGBTQ-related data in AFCARS for youth, we received comments from state title IV–E agencies, national advocacy/public interest groups and other organizations specifically commented on collecting whether a caretaker identifies as LGBTQ. Those that supported collecting LGBTQ-related data on adoptive parents or legal guardians were primarily advocacy organizations representing LGBTQ interests and generally noted that the LGBTQ community remains an untapped resource for finding permanent families for children and youth in foster care. They stated that some of these prospective parents face barriers when they attempt to adopt or obtain legal guardianship because they identify as LGBTQ. They further commented that including this information in AFCARS will promote routine discussions between prospective adoptive parents or legal guardians and title IV–E agencies, normalize conversations around sexual orientation, and signal increased acceptance of LGBTQ caretakers. State title IV–E agencies expressed some of the same concerns with collecting LGBTQ-related data on adoptive parents or legal guardians as they did for children in foster care: Privacy concerns and implications of having this information in a government record; concerns that the data may be used in a discriminatory way; and they expressed the importance of proper staff training for data elements on sexual orientation. Response: We were persuaded by the commenters and we include data elements in AFCARS on an adoptive E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 parent’s or legal guardian’s self-reported gender and sexual orientation. We anticipate that these data elements will assist title IV–E agencies in recruiting, training, and retaining an increased pool of providers who can meet the needs of children who exit out-of-home care to adoption or legal guardianship. We specifically added a decline response option to respond to the privacy issues raised by commenters. Additionally, for the same reasons, we made corresponding changes in paragraph (e) related to the foster parent(s). As previously stated, information on sexual orientation should be obtained and maintained in a manner that reflects respectful treatment, sensitivity, and confidentiality. Several state and county agencies, advocacy organizations and human rights organizations have developed guidance and recommended practices for how to promote these conditions in serving LGBTQ youth in adoption, foster care and out-of-home placement settings. ACF provides state and tribal resources for Working With LGBTQ Youth and Families at the Child Welfare Information Gateway. The following links are provided as general examples of such guidance (Minnesota and California examples). ACF will provide technical assistance to agencies on collecting this information. We also made a minor change in reporting the adoptive parents’ or legal guardians’ gender, in that we require the title IV– E agency to indicate whether each self identifies as ‘‘male’’ or ‘‘female’’ and made the same change for foster parent(s) in paragraph (e). Section 1355.44(h)(15) and (16) Inter/ Intrajurisdictional Adoption or Guardianship In paragraphs (h)(15) through (h)(16), we require the title IV–E agency to report information on the jurisdiction where the child was placed for the adoption or legal guardianship. Comment: One commenter indicated that collecting information on private or international adoptions will impose additional workload on staff and will require policy, training, and information system changes. Response: We do not expect that reporting these data elements would require additional work or training for the title IV–E agency since they apply only to children who are under the placement and care responsibility of the title IV–E agency when they exit foster care to adoption or guardianship. The title IV–E agency would have been reporting the children while in foster care, and thus would know where they placed these children, and whether it is in another country or by a private VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 agency through an arrangement with the title IV–E agency. As we stated in the 2015 NPRM, similar information on adoptions is already collected in the current AFCARS. Comment: A commenter was concerned that interjurisdictional and intrajurisdictional are too much alike and will continually be confused. Response: We believe the regulation is clear. The response options for reporting where a child is placed for adoption or guardianship within the U.S. are limited to placements within or outside of the title IV–E agency’s jurisdiction. We can provide technical assistance during implementation to agencies that need it. Section 1355.44(h)(17) Adoption or Guardianship Placing Agency In paragraph (h)(17), we require the title IV–E agency to report the agency that placed the child for adoption or legal guardianship. We received no comments on this data element and have retained the language proposed in the 2015 NPRM. Section 1355.44(h)(18) Assistance Agreement Type In paragraph (h)(18), we require the title IV–E agency to report the type of assistance agreement that the child has from five response options: Title IV–E adoption assistance agreement; State/ tribal adoption assistance agreement; Adoption-Title IV–E agreement nonrecurring expenses only; Adoption-Title IV–E agreement Medicaid only; Title IV–E guardianship assistance agreement; State/tribal guardianship assistance agreement; or no agreement. We originally proposed to collect information about whether a child was receiving a title IV–E adoption or guardianship assistance subsidy in a separate data file, which we explained in the preamble discussion for section 1355.45 that we removed for the final rule. Since we are still interested in knowing how a child is supported when he or she exits to adoption or guardianship, we now collect information on title IV–E assistance agreements and non-title IV–E assistance agreements in the out-ofhome care data file. We also have a response option for ‘‘no agreement’’ if a child exits out-of-home care to adoption or guardianship without an assistance agreement. We did not receive comments on this data element as proposed in the 2015 NPRM as section 1355.44(c)(1). Section 1355.44(h)(19) Siblings in Adoptive or Guardianship Home In paragraph (h)(19), we require title IV–E agencies to report the number of PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 90559 siblings of the child who are in the same adoptive or guardianship home as the child. Comment: We received several comments to our 2015 NPRM proposal to collect information on siblings, which we also discussed in paragraph (b). In general, several states and a national organization representing state child welfare agencies agreed that the issue of sibling placement is important at the practice level when planning for children, but is better captured as a qualitative data set. Commenters noted it may not be possible for the caseworker to know whether the child has siblings and if so how many because agencies encounter multiple overlapping sibling groups, uncertain parentage, and mixed biological, legal, and stepparent relationships. They had concerns and questions about the 2015 NPRM proposal on siblings (which were in the sections 1355.43(e) and 1355.44 of the 2015 NPRM) including the definition of siblings, reporting sibling record numbers, and the reliability and consistency of the data. Specifically related to siblings placed together in adoption or guardianship, commenters had questions about whether and when to report the child record number for a sibling who exited to adoption or legal guardianship and one state commented that sibling information is not carried into TPR and adoption cases and so the agency would not be able to report if a child in out-of-home care is placed in the same setting as a sibling who is adopted. One commenter suggested that we simplify the reporting and require agencies to report if siblings who exited foster care were placed together in the same adoptive or guardianship home. Response: We carefully reviewed the comments and suggestions and while we understand the concerns raised, we determined that it is important to continue to require title IV–E agencies to report information about siblings. As we noted in the preamble to the 2015 NPRM, section 471(a)(31)(A) of the Act requires title IV–E agencies to make reasonable efforts to place siblings removed from their home in the same foster care, kinship guardianship, or adoptive placement, unless such a placement is contrary to the safety or well-being of any of the siblings. However, we acknowledge that there are many issues that make collecting data on siblings difficult and we were persuaded to revise the sibling data elements to address commenter concerns and simplify reporting. Therefore, we revised the regulation to require the agency to report the number of the child’s siblings who are in the same adoptive or guardianship home as E:\FR\FM\14DER3.SGM 14DER3 90560 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 the child. We believe that this data element, along with the data elements in paragraph (b) related to siblings placed together in out-of-home care, are less complicated than the 2015 NPRM proposal and will yield useful information about siblings. Section 1355.44(h)(20) Available ICWA Adoptive Placements In paragraph (h)(20), if a state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), we require that the state title IV–E agency to indicate which adoptive placements from a list of four were willing to accept placement of the Indian child. This is the same as paragraph (i)(26) proposed in the 2016 SNPRM. Comment: A few state and tribal commenters recommend this data element be removed. One state believes that while it is ‘nice to know’ which placements are ‘willing’, the more salient questions are whether the preferences were followed in regard to the child’s adoption and, if not, why not. Another commenter is concerned the language seems to leave the answer open to a very subjective interpretation of ‘‘were available/willing to accept placement’’ and answering ‘‘yes’’ or ‘‘no’’ does not document diligent or active efforts to ensure the child is adopted by an ICWA compliant placement. That commenter suggests replacing it with which ICWA placement preferences were pursued to accept a placement for adoption. One tribal commenter expressed concern about asking which ICWA placement preferences were willing to accept placement because if there are not enough willing Indian foster and adoptive homes, it may appear that tribes are disinterested in providing homes for Indian children. Response: We were not persuaded to remove the data element indicating the availability of adoptive placements that meet ICWA’s placement preferences. The availability of adoptive placements that meet ICWA’s preferences is critical for meeting the purposes of ICWA. This information is essential for ACF to determine whether resources are needed for recruitment to increase the availability of AI/AN homes that can meet ICWA’s placement preferences for adoption. Under the BIA’s regulation at 25 CFR 23.130, whether a home is available is not a subjective state title IV–E agency determination but rather is evidence offered by the state title IV–E agency to the court that there is good cause to deviate from ICWA’s placement preferences in a particular case where there is also evidence that the state title VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 IV–E agency conducted a diligent search to identify a placement that meets the preferences (25 CFR 23.130). Section 1355.44(h)(21) Adoption Placement Preferences Under ICWA In paragraph (h)(21), if a state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), we require the state title IV–E agency indicate whether each placement reported in paragraph (h)(1) meets the placement preferences of ICWA in 25 U.S.C. 1915(a) by indicating with whom the Indian child is placed from a list of five response options. This is similar to paragraph (i)(27) as proposed in the 2016 SNPRM, except that we changed the response option ‘‘none’’ to ‘‘placement does not meet ICWA placement preferences.’’ Comment: One commenter recommends adding a data element to collect information on whether the tribe supported the placement and adoption of the child. Response: We are not making a change as a result of this comment. Rather, we are retaining the data elements as proposed to require that the state title IV–E agency report certain information on adoptive placement preferences, which are requirements in ICWA at 25 U.S.C. 1915(a), if the Indian child exited foster care to adoption. Collecting information on whether the tribe supported the placement and adoption of the child is not required by ICWA at 25 U.S.C. 1915(a). Section 1355.44(h)(22) Good Cause Under ICWA In paragraph (h)(22), if a state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), we require that if the state title IV–E agency indicated ‘‘placement does not meet ICWA placement preferences’’ in paragraph (h)(21), the state title IV–E agency 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 (25 U.S.C. 1915(a)) or to depart from the placement preferences of the Indian child’s tribe (25 U.S.C. 1915(c)). This is similar to paragraph (i)(28) as proposed in the 2016 SNPRM, except that we updated the language consistent with 25 CFR 23.132. Comment: The national organization representing state child welfare agencies recommended removing this data element, or alternatively, modifying this data element to read ‘‘indicate whether there is a court order that indicates the court’s basis for the finding of good cause.’’ PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 Response: We are not persuaded to remove this data element for the reasons we set forth in the preamble to the 2016 SNPRM. However, the final rule does not include a requirement for the state to report only if the determination was made in a court order. We revised the data element to be consistent with the BIA’s regulations at 25 CFR 23.132(c). Now, states are to 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 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). This provides states with multiple options for obtaining the information. Section 1355.44(h)(23) Basis for Good Cause In paragraph (h)(23), if a state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), and the state title IV–E agency indicated ‘‘placement does not meet ICWA placement preferences’’ in paragraph (h)(22), we require that the state title IV–E agency indicate the state court’s basis for the determination of good cause to depart from ICWA placement preferences, from a list of five response options. This is similar to paragraph (i)(29) as proposed in the 2016 SNPRM except that we updated the language consistent with 25 CFR 23.132; removed the response option ‘‘other’’; and added a response option ‘‘The presence of a sibling attachment that can be maintained only through a particular placement.’’ Comment: The national organization representing state child welfare agencies recommends removing the courts basis for the finding of good cause so that states can focus on the one essential data file element to understand how many Indian children exited the child welfare system to a permanent adoption placement. Another commenter requested clarification regarding what an ‘‘other’’ good cause might be, and recommended that if ‘‘other’’ is selected, the worker must enter into a narrative field explanation of the court’s finding. Response: We were not persuaded to remove the data element indicating the reasons for good cause not to place according to ICWA placement preferences. As we indicated in the preamble to the 2016 SNPRM, reporting information on good cause will help agencies better understand why the ICWA placement preferences are not followed. In addition, such information will aid in targeting training and resources needed to assist states in improving Indian child outcomes. E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 However, we integrated the ICWArelated data elements into other sections of the final rule, thereby moving the data elements on adoption placement preferences proposed in the 2016 SNPRM in paragraph (i) to paragraph (h) and modified the list of reasons for the state court’s basis for the determination of good cause to depart from ICWA placement preferences in ICWA to be consistent with 25 CFR 23.132(c) of the BIA regulations. The possible reasons no longer include the option of ‘‘other’’ and now include the following options: Request of one or both of the child’s parents; request of the Indian child; 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(a) but none has been located; 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; and the presence of a sibling attachment that can be maintained only through a particular placement. Section 1355.45 Adoption and Guardianship Assistance Data File Elements In this section, we require the title IV– E agency to report: (1) Information on the title IV–E agency submitting the adoption and guardianship assistance data file and the report date; (2) basic demographic information on each child, including the child’s date of birth, gender, race and ethnicity; (3) information in the child’s title IV–E adoption or guardianship agreement, including the date of adoption or guardianship finalization, and amount of subsidy, and 4) information about the agreement termination date, if applicable. We retained many of the data elements proposed in the 2015 NPRM, but modified section 1355.45 of the final rule to remove the proposal to collect information regarding: Whether a child is born in the U.S., non-recurring costs, inter/intra-jurisdictional adoption or guardianship, inter-jurisdictional adoption or guardianship jurisdiction, adoption or guardianship placing agency information, and sibling information. These response options ensure that title IV–E agencies report only the essential core set of data elements that we describe below. Section 1355.45(a) General Information In paragraph (a), we require that the title IV–E agency report information VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 about the title IV–E agency, report date and child record number. Section 1355.45(a)(1) Title IV–E Agency In paragraph (a)(1), we require that the title IV–E agency indicate the title IV–E agency responsible for submitting AFCARS data to ACF. We received no comments on this element. Section 1355.45(a)(2) Report Date In paragraph (a)(2), we require that a title IV–E agency indicate the current report period. We received no comments on this element. Section 1355.45(a)(3) Child Record Number In paragraph (a)(3), we require that the title IV–E agency report the child’s record number. We received no relevant comments on this element. Section 1355.45(b) Child Demographics In paragraph (b), we require that the title IV–E agency report information on the child’s date of birth, gender, race and ethnicity. Section 1355.45(b)(1) Child’s Date of Birth In paragraph (b)(1), we require the agency to report the child’s birthdate. This data element will be used with paragraph (d) to determine whether the child is in either the ‘‘pre-adolescent child adoption’’ or ‘‘older child adoption’’ category. We received no comments on this element. Section 1355.45(b)(2) Child’s Gender In paragraph (b)(2) we require the title IV–E agency to indicate whether the child is ‘‘male’’ or ‘‘female’’ as appropriate. Comment: One state commented that all gender fields should include additional response option(s) to capture transgender, gender fluid, and other non-binary individuals. Response: We revised the name of the data elements in sections 1355.44(e) and (h) to require title IV–E agencies to report the gender of the foster parent(s), adoptive parent(s), and legal guardian(s). Section 1355.45(b)(3) Child’s Race In paragraph (b)(3), we require the title IV–E agency to indicate a child’s race as determined by the child or the child’s parent(s) or legal guardians from a list categories described in paragraphs (b)(3)(i) through (b)(3)(viii) of this section. Comment: One group recommended asking about membership in a federallyrecognized tribe. One commenter suggested that regional standards and PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 90561 practices should be documented regarding Latinos that show overrepresentation and outcome disparities, stating that without specific efforts to collect data related to Indian, African American and Latino families, the information will continually be left out of scrutiny and interpretation of data will lack the substance necessary to identify successful efforts and areas that are lacking. Response: The language used reflects the OMB Revised Standards for the Classification of Federal Data on Race and Ethnicity, standardizing federal data collection. We agree that requiring state title IV–E agencies to collect and report data that could identify a child as an Indian child as defined in ICWA is of paramount importance. Therefore, while we did not revise this data element, we require additional information on the child’s tribal membership or eligibility for tribal membership in the out-of-home care population. Section 1355.45(b)(4) Hispanic or Latino Ethnicity In paragraph (b)(4), we require the title IV–E agency to indicate a child’s ethnicity as determined by the child or the child’s parent(s) or legal guardian(s). We received no comments on this element. In paragraph (c) we require that the title IV–E agency report information on the type of assistance agreement, and the subsidy amount. Comment: Several national organizations recommended that we require title IV–E agencies to report additional data elements including: when a successor adopter or guardian has been named in the agreement for Adoption Assistance or guardianship assistance, whether the successor became the adoptive parent or guardian, whether the caretaker has been informed of federal and/or state postpermanency services available outside of the adoption assistance or guardianship assistance funds subsidy and/or Medicaid specific benefits. Commenters recommend these additional data elements because they believe the data can provide more information about what work is needed to ensure successors are named in the agreements whenever possible, and to prevent unnecessary re-entry into foster care. Response: We considered these suggestions, but did not make changes in response. States information systems differ and include information useful for their own internal purposes, but not mandated by AFCARS. We encourage states to consider collecting data that E:\FR\FM\14DER3.SGM 14DER3 90562 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations helps states identify how to ensure successors are named in the agreements whenever possible, and to evaluate how to prevent unnecessary re-entry into foster care, but we do not require that they report those data to AFCARS. sradovich on DSK3GMQ082PROD with RULES3 Section 1355.45(c)(1) Assistance Agreement Type In paragraph (c)(1) we require the title IV–E agency to report whether the child is or was in a finalized adoption with a title IV–E adoption assistance agreement or in a legal guardianship with a title IV–E guardianship assistance agreement, pursuant to sections 473(a) and 473(d) of the Act, in effect during the report period. Comment: One state requested clarification regarding why title IV–E agencies must report information on only those children that have a title IV– E agreement. The state expressed concern that this limited information does not present a complete picture of adoptions across the state. Response: We did not make changes in response to these suggestions. In the 2015 NPRM, we proposed one data element with narrowed response options since we propose to collect information on children under title IV– E adoption and guardianship assistance agreements only, rather than both title IV–E and non-title IV–E agreements. This is in line with our responsibility regarding matters related to children receiving Federal benefits, such as Federal budget projections. We encourage states to consider collecting data that helps states to evaluate and implement state law, but we do not require that they report those data to AFCARS. Section 1355.45(c)(2) Adoption or Guardianship Subsidy Amount In paragraph (c)(2), we require the title IV–E agency to report the per diem dollar amount of the financial subsidy paid to the adoptive parent(s) or legal guardian(s) on behalf of the child during the last month of the current report period, if any. Comment: One national organization commented that children under guardianship of others and adopted children do not have open service cases even when there is a subsidy attached. The financial information for continuation of subsidy is captured by many states in other systems. Reporting on the expanded population would require a significant change in the application and report programs and laws and policies in many states. Response: We are not persuaded to make a change based on this comment. We currently do not collect data on VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 children receiving ongoing financial assistance after an adoption or guardianship is finalized, though those children typically receive benefits for many years, until age 18 and possibly up to age 21. When AFCARS was originally implemented, such children were a smaller portion of the caseload and program cost. However, in recent years, the adoption assistance caseload alone has grown dramatically, and now represents approximately 70 percent of title IV–E beneficiaries. As we explained in the 2015 NPRM, since title IV–E funds are reimbursed for adoption assistance and guardianship assistance costs, this information is essential for conducting budget projections and program planning for both title IV–E adoption assistance and guardianship assistance programs. Section 1355.45(d) Adoption Finalization or Guardianship Legalization Date In paragraph (d), we require the title IV–E agency to report the date that the title IV–E adoption was finalized or the guardianship became legalized. This data element will be used with paragraph (b) to determine whether the child is in either the ‘‘pre-adolescent child adoption’’ or ‘‘older child adoption’’ category. We received no comments on this element. Section 1355.45(e) Agreement Termination Date In paragraph (e), we require that if the title IV–E agency terminated the adoption assistance or guardianship assistance agreement or the agreement expired during the reporting period, the title IV–E agency to report the month, day and year that the agreement terminated or expired. Comment: Several national organizations recommended that the title IV–E agency report the reason why guardianship and adoption agreements are terminated so that agencies can capture more information about dissolutions and identify what additional supports may be needed for the children involved, and recommended that such reasons include: Death of adoptive parent or guardian, incapacitation, dissolution, child reached age of majority, or other. One state requested that we explain the value of collecting Agreement Termination Dates, especially with not collecting why the agreements are closing. Response: We considered these suggestions, but did not make changes in response to commenters because we determined that at a national level we do not have a use for or need for this PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 level of detail to determine how many agreements exist. We are collecting the end dates for title IV–E adoption and guardianship assistance agreements because combined with the child’s date of birth they will allow us to calculate more accurately the number of children served under title IV–E agreements, as well as the incidence of dissolution of adoption and legal guardianships for children supported by the title IV–E programs. States may include such additional data in their data system if it is useful for their own internal purposes, but not mandated by AFCARS. Section 1355.46 Compliance In section 1355.46, we specify the type of assessments we will conduct to determine the accuracy of a title IV–E agency’s data, the data that is subject to these assessments, the compliance standards and the manner in which the title IV–E agency initially determined to be out of compliance can correct its data. Comment: Overall, states that commented believe these compliance standards may negatively affect the status of a state’s AFCARS Improvement Plan or SACWIS improvements, and that compliance with the new data requirements may require states to rebuild existing systems or may be incompatible with recent SACWIS improvements. Response: We recognize that agencies will need to make revisions and improvements to their electronic case management systems for the final rule. We intend to close out all AFCARS Improvement Plans and we will work with title IV–E agencies to meet the final rule requirements. Enhancements to the title IV–E agency’s case management system to support the revised data collection requirements may be eligible for title IV–E administrative funds for development costs. Comment: One commenter pointed out that there appears to be no administrative process for a state to challenge ACF’s initial assessment of data noncompliance. Response: That is correct. Rather, we provide the title IV–E agency with an opportunity to appeal the ‘‘final’’ determination of compliance to the HHS Departmental Appeals Board (DAB) after the agency has had an opportunity to submit corrected data and come into compliance. This is covered in section 1355.47(d) ‘‘Appeals.’’ Section 1355.46(a) Files Subject to Compliance In paragraph (a), we specify that ACF will determine whether a title IV–E E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 agency’s AFCARS data are in compliance with section 1355.43 and data file and quality standards described in paragraphs (c) and (d). We specify that ACF will exempt records related to a child in either data file whose 18th birthday occurred in a prior report period and will exempt records relating to a child in the adoption and guardianship assistance data file who is in a title IV–E guardianship from a compliance determination as described in paragraph (e) of this section. Comment: Several commenters believe that the data and the multiple data file requirements are complex and thus compliance failures and penalties are unavoidable. Response: We understand the commenters to be concerned that because of the revised data file standards, it will be more difficult for a state to submit compliant data. The standards we set forth are authorized by the law and in line with the requirement that the data submitted to us is reliable and consistent. We established the specific standards for compliance consistent with our current requirements (see Appendix E to part 1355 of current regulations). Furthermore, the statute allows a sixmonth period for corrective action during which time technical assistance will be available to assist title IV–E agencies in submitting compliant data. The approach is also consistent with the how we implemented the NYTD. Section 1355.46(b) Errors In paragraph (b), we outline the definitions of errors in paragraphs (b)(1) through (b)(5) regarding missing data, invalid data, internally inconsistent data, cross-file errors, and tardy transactions. We also provide for how we will identify those errors when we assess information collected in a title IV–E agency’s out-of-home care data file (per section 1355.44) and adoption and guardianship assistance data file (per section 1355.45). Comment: Several commenters requested clarification about what ACF will consider ‘‘errors’’ for elements, whether errors would be identified by internal consistency checks within the data file, and whether errors would be identified by review during a later AFCARS or SACWIS audit. Response: We identify five errors in paragraph (b) that we will assess: Missing data, invalid data, internally inconsistent data, cross-file errors, and tardy transactions. Assessing these errors will help ACF determine if the title IV–E agency’s data files meet the data file submission and data quality standards outlined in paragraphs (c) and VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 (d) of this section. ACF will develop and issue error specifications in separate guidance. Comment: One commenter requested clarification about whether a title IV–E agency will be non-compliant if the data are incomplete or unavailable for the title IV–E kinship guardian assistance program or extension of foster care to age 21 programs. Response: We’d like to clarify that the regulation text specifies that ACF will exempt records related to a child in either data file whose 18th birthday occurred in a prior report period and will exempt records relating to a child in the adoption and guardianship assistance data file who is in a title IV– E guardianship from a compliance determination as described in paragraph (e) of this section. However, this information is still important to ACF and we plan to ensure that title IV–E agencies submit quality data through such means as program improvement plans, targeted technical assistance, or data quality utilities. Comment: One commenter stated that it is unreasonable that we are not publishing more detailed information on compliance standards in the regulation. Further, the commenter stated that changing internal consistency and cross-check standards ‘‘as needed,’’ results in the compliance target becoming elusive. Response: We understand the commenter is concerned that we have chosen not to promulgate details on error specifications and checks through notice and comment rulemaking. Instead, we plan to publish these error checks outside of formal rulemaking through official technical bulletins and policy. This provides us the flexibility to update and revise them as needed to keep pace with changing and advancing technology. This is consistent with the approach we have taken with the NYTD compliance checks. Comment: A national organization representing state child welfare agencies, four states and two other organizations objected to the 30 day transaction date timeframe for paragraphs (d)(2) and (g)(2) stating that it is an insufficient timeframe for entering the removal and exit dates. They recommended that it remain at 60 days as in current AFCARS. They cited the burden of the shorter timeframe, commenting that it is unduly onerous and would be a challenge for local agencies to meet. Response: We understand the concern; however, we retained our proposal for the 30 day timeframe because ensuring a title IV–E agency’s timely entry of removal and exit dates PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 90563 is critical to quality data. Additionally, as is the current practice in AFCARS, these errors are only assessed once. So, if the date was not entered in a timely manner, we will assess the title IV–E agency out of compliance for the report period the event occurred only and we will not re-assess it in the next and future report periods. The penalty, thus, will only be applied to the applicable six-month report period. We have retained paragraphs (b)(1) through (b)(5) as proposed in the 2015 NRPM. Section 1355.46(c) Data File Standards In paragraph (c), we set the data file submission standards (timely submission, proper format, and acceptable cross-file) for ACF to determine that the title IV–E agency’s AFCARS data is in compliance. In paragraph (c)(1), we require that the title IV–E agency submit AFCARS data within 45 days of the end of each sixmonth report period. In paragraph (c)(2), we require that a title IV–E agency send us its data files in a format that meets our specifications and submit 100 percent error-free data on limited basic information including title IV–E agency name, report period, the child’s demographic information for the out-ofhome care data file and the adoption and guardianship assistance data file. Comment: Four title IV–E agencies do not support the deadline of 30 days after the end of the report period to submit the data file believing it will limit the agency’s ability to provide an accurate data file. They stated that they would have less time to ensure that all data is entered, provide direction to the field on any needed data corrections, and test and validate the data file before submitting it to ACF. The commenters recommended staying with the current 45 day submission deadline. Response: We modified the regulation to allow title IV–E agencies up to 45 days after the end of the report period to transmit the AFCARS data files. However, we wish to emphasize that the purpose of this transmission period is to extract the data and ensure the file is in the proper format for transmission. Agencies should review the information in the system, including information used in AFCARS reporting, on a regular and ongoing basis in accordance with the title IV–B quality assurance system requirements. This is consistent with current practice with AFCARS. Comment: A handful of commenters were concerned about ACF’s data quality requirements of 100 percent compliance with data format standards believing it is unlikely any title IV–E agencies will be able to meet these standards. In addition, there was E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90564 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations confusion by some commenters misunderstanding that we expected 100 percent freedom from ‘‘cross-file’’ errors. Response: We proposed 100 percent compliance for data format standards only for proper format and on certain data elements specified in section 1355.46(c)(2) because the proper format is crucial to the proper transmission and receipt of the data file. The administrative elements (agency, date, etc.) and the basic demographic data elements specified in section 1355.46(c)(2) contain information that is readily available to the title IV–E agency and is essential to our ability to analyze the data and determine whether the title IV–E agency is in compliance with the remaining data standards. The five data elements in the adoption assistance data file are basic administrative data elements and are directly linked to calculating adoption incentive payments under section 473A of the Act. Also, based on our experience with the existing AFCARS and with the NYTD, we have found that problems in these data elements are often the result of minor errors that can be rectified easily. We therefore believe that a 100 percent data format compliance standard for these basic and critical data elements specified in section 1355.46(c)(2) is appropriate. The approach is also consistent with how we implemented the NYTD. We will issue guidance on cross-file compliance during implementation. Comment: One state suggested that ACF use a method similar to the NCANDS transmission method noting it is much simpler and more direct. Response: The transmission method for AFCARS is outside the scope of the regulations as we did not regulate the specific method used by AFCARS, only that it must be electronic. However, we should note that the current AFCARS method is in compliance with federal security protocols for the proper submission of data files. Comment: One commenter believes the data file structure needs to be clarified and the public should have the opportunity to comment. Another commenter asked if ACF will provide technical assistance or support to states that are unable to meet the AFCARS basic file standards. Response: As we explained in the preamble to section 1355.46(b), we did not regulate the technical requirements for formatting or transmitting the AFCARS data files because of inevitable future advances in technology. Instead, we will issue technical requirements and specifications through official ACF policy and technical bulletins. Further, VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 we will consider what form of technical assistance may be needed by title IV–E agencies to meet the AFCARS data file submission standards. The approach is also consistent with the how we implemented the NYTD. Section 1355.46(d) Data Quality Standards In paragraph (d)(1), we specify the data quality standards for the title IV– E agency to be in compliance with AFCARS requirements. We received no substantive comments on this section. In paragraph (d)(2), we specify the acceptable cross-file standards, which are that the data files must be free of cross-file errors that exceed the acceptable thresholds, as defined by ACF. In the 2015 NPRM, we proposed this as paragraph (c)(3) of this section. We did not receive comments on this paragraph. However, to match the requirement in paragraph (e)(2) of this section, we moved the acceptable crossfile requirement to paragraph (d) with the data quality standards. If each data file meets the data file standards of paragraph (c) of this section, ACF will then determine whether each data file meets the data quality standards in paragraph (d) of this section. Section 1355.46(e) Compliance Determination and Corrected Data In paragraph (e), we specify the methodology for determining compliance and a title IV–E agency’s opportunity to submit corrected data when ACF has initially determined that the title IV–E agency’s original submission does not meet the AFCARS standards. We received no specific comments on this section and have retained the proposed language with minor conforming edits. Section 1355.46(f) Noncompliance In paragraph (f), we specify that a title IV–E agency has not complied with the AFCARS requirements if the title IV–E agency either does not submit corrected data files, or does not submit corrected data files that meet the compliance standards in paragraphs (c) and (d) of this section. We received no specific comments on this section and have retained the proposed language with minor conforming edits. Section 1355.46(g) Other Assessments In paragraph (g), we explain that ACF may use other monitoring tools that are not explicitly mentioned in regulation to determine whether the title IV–E agency meets all AFCARS requirements. We received no specific comments on this section and have retained the PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 proposed language with minor conforming edits. Section 1355.47 Penalties In section 1355.47 we provide for how ACF will assess and take penalties for a title IV–E agency’s noncompliance with AFCARS requirements outlined in section 1355.46. Section 1355.47(a) Federal Funds Subject to a Penalty In paragraph (a), we specify the pool of funds that are subject to a penalty for noncompliance as required by law. We did not receive specific comments on paragraph (a) and have retained the proposed language with minor conforming edits. Section 1355.47(b) Penalty Amounts In paragraphs (b)(1) and (b)(2), we specify the penalty amounts for noncompliance and continued noncompliance as required by section 474(f)(2) of the Act. Comment: Many of commenters, particularly title IV–E agencies, do not support the penalty provisions as proposed in section 1355.47 and suggested a variety of alternatives, including phasing in the penalties, providing incentives, reinvesting penalties back into data improvements, or waiving penalties. A couple commenters believed that the penalty structure did not allow for a graduated or proportional structure to assess penalties reflective of an individual agency’s level of compliance, or any consideration of past efforts to produce the required data. A few commenters supported penalties as a method to incentivize title IV–E agencies to fulfill their duties. One organization suggested applying the penalties to the optional title IV–E programs including kinship guardianship and extended foster care. Response: We did not revise the penalty provisions in response to these comments because the penalties are required by law and the structure is consistent with section 474(f) of the Act. There is no provision in the law for incentives or reinvestment of penalties. The penalty structure applies to all title IV–E agencies and, we have retained our proposal not to apply the penalty to the optional title IV–E programs. We are allowing ample time for state and tribal title IV–E agencies to modify their systems to report quality data as required by the final rule. Comment: A couple states oppose the timeframe for corrective action and penalties for subsequent reporting periods and one commenter suggested that we allow time for system E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations improvements as part of corrective action before ACF issues a penalty. Response: We did not make any changes to address this comment because the statute specifies the time period for corrective action and thus we are unable to provide a lengthier timeframe for corrections to systems or otherwise. Comment: A state commenter asked if there will be technical assistance and support offered to title IV–E agencies that are unable to meet basic file standards. Response: We will continue to conduct AFCARS assessment reviews to address situations expressed by the commenter about quality data and engage state and tribal title IV–E agencies in technical assistance in all aspects of the implementation of AFCARS. Section 1355.47(c) Penalty Reduction From Grant In paragraph (c), we specify that we will collect an assessed penalty by reducing the title IV–E agency’s title IV– E foster care funding following ACF’s notification of the final determination of noncompliance. We did not receive any comments on paragraph (c). Section 1355.47(d) Appeals In paragraph (d), we specify that the title IV–E agency has an opportunity to appeal a final determination that the title IV–E agency is out of compliance and assessed financial penalties to the HHS Departmental Appeals Board (DAB). We did not receive any comments on paragraph (d). VII. Regulatory Impact Analysis sradovich on DSK3GMQ082PROD with RULES3 Executive Order 12866 and 13563 Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has determined that this final rule is consistent with these priorities and principles. In particular, ACF has determined that a regulation is the best and most cost effective way to implement the statutory mandate for a data collection system regarding children in foster care and those who exit to permanency and support other VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 statutory obligations to provide oversight of child welfare programs. ACF consulted with the Office of Management and Budget (OMB) and determined that this rule does meet the criteria for a significant regulatory action under E.O. 12866. Thus, it was subject to OMB review. ACF determined that the costs to title IV–E agencies as a result of this rule will not be significant as defined in Executive Order 12866 (have an annual effect on the economy of $100 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, or tribal governments or communities). Federal reimbursement under title IV–E will be available for a portion of the costs that title IV–E agencies will incur as a result of the revisions in this rule, depending on each agency’s cost allocation plan, information system, and other factors. Estimated burden and costs to the federal government are provided below in the Burden estimate section, which we estimate to be $40,749,492. As a result of this rule, title IV–E agencies will report historical data on children in out-of-home care and information on legal guardianships, and we will have national data on Indian children as defined in ICWA. Alternatives Considered: 1. ACF considered whether other existing data sets could yield similar information. ACF determined that AFCARS is the only comprehensive case-level data set on the incidence and experiences of children who are in outof-home care under the placement and care of the title IV–E agency or who are adopted under a title IV–E adoption assistance agreement. 2. We also received state comments to the 2016 SNPRM citing they have few Indian children in foster care, if any. ACF considered alternatives to collecting ICWA-related data through AFCARS, such as providing an exemption from reporting, but alternative approaches are not feasible due to: • AFCARS data must be comprehensive per section 479(c)(3) of the Act and exempting some states from reporting the ICWA-related data elements is not consistent with this statutory mandate, and would render it difficult to use this data for development of national policies. • Section 474(f) of the Act provides for mandatory penalties on the title IV– E agency for non-compliance on AFCARS data that is based on the total amount expended by the title IV–E agency for administration of foster care PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 90565 activities. Therefore, we are not authorized to permit some states to be subject to a penalty and not others. In addition, allowing states an alternate submission process would complicate and/or prevent the assessment of penalties per § 1355.47, including penalties for failure to submit data files free of cross-file errors, missing, invalid, or internally inconsistent data, or tardy transactions for each data element of applicable records. Regulatory Flexibility Analysis The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96–354), that this rule will not result in a significant impact on a substantial number of small entities. This final rule does not affect small entities because it is applicable only to state and tribal title IV–E agencies. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act (Pub. L. 104–4) requires agencies to prepare an assessment of anticipated costs and benefits before proposing any rule that may result in an annual expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation). That threshold level is currently approximately $146 million. This final rule does not impose any mandates on state, local, or tribal governments, or the private sector that will result in an annual expenditure of $146 million or more. Congressional Review This regulation is not a major rule as defined in 5 U.S.C. 8. Assessment of Federal Regulations and Policies on Families Section 654 of the Treasury and General Government Appropriations Act of 2000 (Pub. L. 106–58) requires federal agencies to determine whether a policy or regulation may affect family well-being. If the agency’s determination is affirmative, then the agency must prepare an impact assessment addressing seven criteria specified in the law. This final regulation will not have an impact on family well-being as defined in the law. Executive Order 13132 Executive Order 13132 requires that federal agencies consult with state and local government officials in the development of regulatory policies with Federalism implications. Consistent with E.O. 13132 and Guidance for Implementing E.O. 13132 issued on E:\FR\FM\14DER3.SGM 14DER3 90566 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 October 28, 1999, the Department must include in ‘‘a separately identified portion of the preamble to the regulation’’ a ‘‘federalism summary impact statement’’ (Secs. 6(b)(2)(B) & (c)(2)). The Department’s ‘‘federalism summary impact statement’’ is as follows— • ‘‘A description of the extent of the agency’s prior consultation with State and local officials’’—ACF held consultation calls for the 2015 NPRM on February 18 and 20, 2015 and public comment period was open from February 9, 2015 to April 10, 2015 where we solicited comments via regulations.gov, email, and postal mail. ACF held consultation calls for the 2016 SNPRM on April 15, 22, 25, and 29, 2016 and the public comment period was open from April 7, 2016 to May 9, 2016 where we solicited comments via regulations.gov, email, and postal mail. • ‘‘A summary of the nature of their concerns and the agency’s position supporting the need to issue the regulation’’—As we’ve discussed in the preamble to this final rule, many commenters to the 2015 NPRM supported many of the revisions we proposed for AFCARS; however, some commenters expressed concern with the burden of additional data elements. Many commenters to the 2016 SNPRM supported collecting ICWA-related data in AFCARS and stated that it will better inform practice for AI/AN children. However, they also expressed concern with the burden of additional data elements and suggested that we pare down the overall number of data element to a core set that collects essential information related to ICWA. • ‘‘A statement of the extent to which the concerns of State and local officials have been met’’ (Secs. 6(b)(2)(B) & 6(c)(2))—As we discuss in the sectionby-section discussion preamble, we streamlined many data elements that we proposed in the 2015 NPRM. We also sought to reduce duplication by integrating the ICWA-related data elements proposed in the 2016 SNPRM into other sections of AFCARS. We expand on these comments in the section-by-section discussion. Paperwork Reduction Act Under the Paperwork Reduction Act (44 U.S.C. 35, as amended) (PRA), all Departments are required to submit to OMB for review and approval any reporting or recordkeeping requirements inherent in a proposed or final rule. PRA rules require that ACF estimate the total burden created by this final rule VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 regardless of what information is available. ACF provides burden and cost estimates using the best available information. Information collection for AFCARS is currently authorized under OMB number 0970–0422; however, this final rule significantly changes the collection requirements by requiring title IV–E agencies to report historical data and data related to ICWA. This final rule contains information collection requirements in proposed § 1355.44, the out-of-home care data file, and § 1355.45, the adoption and guardianship assistance data file, that the Department has submitted to OMB for its review. This final rule requires: • State and tribal title IV–E agencies to report information on children who are in the out-of-home care reporting population per § 1355.42(a); • State and tribal title IV–E agencies to report information on children who are in the adoption assistance reporting population per § 1355.42(b); and • State title IV–E agencies to report ICWA-related information in the out-ofhome care data file. Comments to the 2015 NPRM: State title IV–E agencies and the national organization representing state child welfare agencies felt that our burden estimates were low, but very few states provided estimates on burden hours or costs to implement the 2015 NPRM as a comparison. The comments were primarily about technical or programmer costs to modify the information system and did not include the work associated with gathering information or training. The estimates we received to modify a state information system ranged from 2,000 hours to 20,000 hours. Comments to the 2016 SNPRM: Overall, many states and the national organization representing state child welfare agencies felt that the burden of the 2016 SNPRM will be significantly higher than the estimates provided. They said that reporting ICWA-related information would require significant upgrades to the SACWIS or other case management system to be able to report the data. States said that they collect some information, but not all information (e.g., name of tribes) is in an extractable data field and it is documented in case narratives. They also stated there will be an increased workload due to manually entering information from paper court orders or case narratives into the system for AFCARS reporting and limited or no electronic exchange exists in some states between the state title IV–E PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 agency and state court. One organization expressed concern that the 2016 SNPRM burden calculations assumed all states would be equally impacted, and suggested that states with few Indian children, as defined in ICWA, be allowed to format data collection in a different way. This commenter also expressed that states with larger AI/AN population would face a large burden for staff to meet the mandates. Five state title IV–E agencies provided specific burden and cost estimates and suggestions for how to calculate the estimates for the 2016 SNPRM. They ranged from: • Implementation timeframe of 24 months to 3.5 years to design, develop, and implement system modifications. • One-time costs of $100,000 to $803,000 to make system changes. • Annual costs of $120,000 per year to enter data from court records. • Increase the average hourly labor rate we used in the 2016 SNPRM include hourly rates for programming staff, staff attorneys, and paralegals because they would all be working together to implement the requirements of the 2016 SNPRM. • Increase the time to determine whether a child is an Indian child as defined in ICWA to 1.5 hours per child. • Base the estimates on all children entering foster care and not limit it to those for whom the race AI/AN was indicated. Although ACF appreciates that these agencies provided this information on hourly and cost burden estimates, ACF received too few estimates to reference for calculating the cost and burden associated with this final rule. We understand the new data requirements could impact the time workers spend providing casework directly with children and families. However, this final rule reflects careful consideration of input received from states and tribes and balances the need for more current data with concerns from commenters about the burden that new reporting requirements represent. Thus, ACF carefully considered the statutory requirement in section 479(c)(1) of the Act to ‘‘avoid unnecessary diversion of resources from agencies responsible for adoption and foster care’’ and determined that the Final Rule does not represent an unnecessary diversion of resources. ACF provides estimates using the best available information. Burden Estimate The following are estimates. E:\FR\FM\14DER3.SGM 14DER3 90567 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations Number of respondents Collection—AFCARS Number of responses per respondent Average burden hours per response Total annual burden hours Recordkeeping ................................................................................................. Reporting ......................................................................................................... 59 59 2 2 8,204.25 18 968,102 2,124 Total .......................................................................................................... ........................ ........................ ........................ 970,226 Respondents: The 59 respondents comprise 52 state title IV–E agencies and seven tribal title IV–E agencies, which are Indian tribes, tribal organizations or consortium with an approved title IV–E plan under section 479B of the Act. 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, 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. Reporting burden: Extracting the information for AFCARS reporting and transmitting the information to ACF. Total annual burden hours Collection—AFCARS Annualized Cost to the Federal Government Federal reimbursement under title IV– E will be available for a portion of the costs that title IV–E agencies will incur as a result of the revisions proposed in this rule, depending on each agency’s cost allocation plan, information system, and other factors. For this estimate, we used the 50% FFP rate. Average hourly labor rate Total cost Estimate Federal costs (50% FFP) 968,102 2,124 $84 84 $81,320,668 178,416 $40,660,284 89,208 Total .......................................................................................................... sradovich on DSK3GMQ082PROD with RULES3 Recordkeeping ................................................................................................. Reporting ......................................................................................................... ........................ ........................ ........................ 40,749,492 Assumptions for Estimates We made a number of assumptions when calculating the burden and costs: • To determine the number of children for which title IV–E agencies will have to report in the out-of-home care data file, ACF used the most recent FY 2015 AFCARS data available: Æ 269,509 Number of children who entered foster care during FY 2015. Of those, 6,350 children had a reported race of AI/AN. Æ We estimate the number of children to whom the ICWA-related data elements apply by using as a proxy those children whose race was reported as ‘‘American Indian or Alaska Native’’ in the most recent FY 2015 AFCARS data available. This is the best available data we can use for the burden estimate of the ICWA-related information even though we understand that not every child of this reported race category will be covered under ICWA and would also include children reported by a tribal title IV–E agency. The state title IV–E agency must report whether all children who enter foster care may be Indian children as defined in ICWA. • To determine the number of children for which title IV–E agencies must report in the adoption and guardianship assistance file, ACF used the most recent title IV–E Programs Quarterly Financial Report, CB–496, for FY 2015. 440,934 children received title VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 IV–E adoption assistance and 21,173 children received guardianship assistance. • For this final rule, we integrated the ICWA-related data elements into other sections of the regulation. Tribal title IV–E agencies are not required to collect the ICWA-related information. • The state title IV–E agency will be required to collect information for approximately 98 data elements for all children who are in both the out-ofhome care reporting population and adoption and guardianship assistance reporting population and for approximately 17 data elements on children to whom the ICWA-related data elements apply in the out-of-home care reporting population. • Tribal title IV–E agencies will be required to collect information for approximately 95 data elements for all children who are in the out-of-home care reporting population and adoption and guardianship assistance reporting population. • ACF assumed that the burden for state and tribal title IV–E agencies to modify systems is similar to how long it would take to make revisions to a Comprehensive Child Welfare Information Systems (CCWIS). Currently, 36 states have an operational SACWIS and title IV–E agencies will have the option to transition to or build a CCIWS under the revised regulations PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 at 45 CFR 1355.50 et sq. ACF also recognizes that most title IV–E agencies will require revisions to electronic case management systems to meet the requirements of this final rule. As more title IV–E agencies build CCWIS, ACF anticipates it will lead to more efficiency in reporting and less costs and burden associated with this AFCARS final rule to the agencies. • After reviewing the 2015 Bureau of Labor Statistics data and comments to the 2016 SNPRM to help determine the costs of the final rule, ACF assumed that there will be a mix of programming, management, caseworkers, and legal staff working to meet both the one-time and annual requirements of this final rule. For this estimate, we used the job roles of: Computer and Mathematical Operations (15–0000) with a hourly wage of $41.43; Social Workers (21– 1020) with a mean hourly wage estimate of $23.88; Management Analyst (13– 1111) with a mean hourly wage estimate of $44.12; Social and Community Service Managers (11–9151) with a mean hourly wage estimate of $33.38; and Paralegals and Legal Assistants (23– 2011) with a mean hourly wage estimate of $25.19. Thus, ACF averaged these wages to come to an average labor rate of $42. In order to ensure we took into account overhead costs associated with these labor costs, ACF doubled this rate ($84). E:\FR\FM\14DER3.SGM 14DER3 90568 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 Calculations for Estimates Recordkeeping: Adding the bullets below produces a total of 968,102 record keeping hours annually. • For the out-of-home care data file, searching data sources, gathering information, and entering the information into the system will take on average 3 hours annually for all children who enter foster care and 10 hours for children who are Indian children as defined in ICWA. (3 hours × 269,509 children = 808,527 annual hours. 10 hours × 6,350 children = 63,500 annual hours. 808,527 + 63,500 = 872,027 total annual hours for this bullet.) • For the adoption and guardianship assistance data file, updates or changes on an annual or biennial basis will take an average of 0.2 hours annually for records of children who have an adoption assistance agreement and 0.3 hours annually for children who have an guardianship assistance agreement for a total annual hours of 94,539. (0.2 hours × 440,934 children = 88,187 hours. 0.3 hours × 21,173 children = 6,352 hours. 6,352 hours + 88,187 hours = 94,539 total annual burden hours for this bullet.) • Developing or modifying procedures and systems to collect, validate, and verify the information and adjusting existing ways to comply with AFCARS requirements will take on average 230 hours annually. • 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 will take on average 1,306 hours annually. Reporting: Extracting the information for AFCARS reporting and transmitting the information to ACF will take on average 18 hours. In the above estimates, ACF acknowledges: (1) ACF has used average figures for title IV–E agencies of very different sizes and of which, some states may have larger populations of children served than other agencies, (2) these are rough estimates of the burden because state title IV–E agencies have not been required previously to report ICWArelated information in AFCARS, and (3) as described, ACF has limited information to use in making these estimates. 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. This does VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 not affect the deadline for the public to comment to the Department on the proposed regulations. Written comments to OMB or the proposed 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 OIRA_ submission@omb.eop.gov. Please mark faxes and emails to the attention of the desk officer for ACF. VIII. Tribal Consultation Statement ACF is committed to consulting with Indian tribes and tribal leadership to the extent practicable and permitted by law, prior to promulgating any regulation that has tribal implications. As we developed this rule, ACF engaged with tribes through multiples means. The requirements in this final rule were informed by consultations with and comments from tribal representatives. Starting mid-2015, we began tribal consultation, conducted in accordance with the ACF Tribal Consultation Policy (76 FR 55678) with tribal representatives to obtain input on proposing additional AFCARS data elements related to ICWA. There was a conference call on May 1, 2015, that was co-facilitated by CB Associate Commissioner and the Chairperson of the ACF Tribal Advisory Committee, who also serves as the Vice Chair of the Jamestown S’Klallam Tribal Council. Tribes were informed of these consultations and conference calls through letters to tribal leaders. Comments were solicited during the call to determine essential data elements that state title IV–E agencies should report to AFCARS including, but not limited to: Whether the requirements of ICWA were applied to a child; notice for child welfare proceedings; active efforts to prevent removal or to reunify the Indian child with the child’s biological or adoptive parents or Indian custodian; placement preferences in ICWA; and terminations of parental rights for an Indian child. Tribal representatives did not provide specific suggestions on the call, but noted that they would provide formal comments on the 2016 SNPRM when it was issued. In addition to the May 2015 tribal consultation, we reviewed comments to the 2015 NPRM that suggested we include ICWA-related data elements and we used these comments to help inform the 2016 SNPRM. We received 45 comments to the 2015 NPRM that recommended collecting basic information about the applicability of ICWA for children in out-of-home care, including: Identification of American Indian and Alaska Native children and their family structure, tribal notification PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 and intervention in state court proceedings, the relationship of the foster parents and other providers to the child, decisions to place a child in outof-home care (including data on active efforts and continued custody), whether a placement was licensed by an Indian tribe, whether the placement preferences in ICWA were followed, and termination of parental rights (both voluntary and involuntary). After the 2016 SNPRM was published, ACF conducted additional consultations with tribal representatives and the public via conference calls on April 22, 25, and 27, 2016 during the public comment period. Tribes were informed of these consultations and conference calls through letters to tribal leaders and emails on ACF’s tribal list serves. Much of the dialogue from call attendees was supportive of the data elements proposed in the 2016 SNPRM stating they are an important step to allowing tribes, states, and federal agencies the ability to develop a more detailed understanding of the unique experiences, needs, and barriers to permanency for AI/AN children. There was also discussion regarding how state title IV–E agencies will implement specific data elements around qualified expert witnesses, how state title IV–E agencies will share the data gathered with tribes, and the process for determining whether a state title IV–E agency will be found in non-compliance with data collection. Throughout the calls, we encouraged tribal representatives to submit written comments during the public comment period. We received 41 comments from tribes and 11 comments from organizations representing tribal interests, many of which were co-signed by multiple tribes. We addressed public comments in the section-by-section discussion preamble. This final rule was informed by these consultations and comments. List of Subjects in 45 CFR Part 1355 Adoption and foster care, Child welfare, Grant programs—social programs. (Catalog of Federal Domestic Assistance Program Number 93.658, Foster Care Maintenance; 93.659, Adoption Assistance; 93.645, Child Welfare Services—State Grants). E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations Dated: October 11, 2016. Mark H. Greenberg, Acting Assistant Secretary for Children and Families. Approved: October 14, 2016. Sylvia M. Burwell, Secretary. For the reasons set forth in the preamble, we amend 45 CFR part 1355 as follows: PART 1355—GENERAL 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. 2. Amend § 1355.40 by redesignating paragraphs (a) through (e) as (b) through (f), adding a new paragraph (a), revising the second sentence of newly redesignated paragraph (b)(1), and revising newly redesignated paragraph (f) to read as follows: ■ § 1355.40 Foster care and adoption data collection. (a) Scope. State and tribal title IV–E agencies must follow the requirements of this section and Appendices A through E of part 1355 until September 30, 2019. As of October 1, 2019, state and tribal title IV–E agencies must comply with §§ 1355.41 through 1355.47. (b) * * * (1) * * * The data reporting system must meet the requirements of § 1355.40(c) and electronically report certain data regarding children in foster care and adoption. * * * * * * * * (f) Substantial noncompliance. Failure by a title IV–E agency to meet any of the standards described in paragraphs (b) through (e) of this section is considered a substantial failure to meet the requirements of the title IV–E plan. * * * * * § 1355.40 [Removed and Reserved] 3. Effective October 1, 2019, remove and reserve § 1355.40. ■ 4. Add §§ 1355.41 through 1355.47 to read as follows: ■ sradovich on DSK3GMQ082PROD with RULES3 § 1355.41 Scope of the Adoption and Foster Care Analysis and Reporting System. (a) This section applies to state and tribal title IV–E agencies unless indicated for state title IV–E agencies only. (b) An agency described in paragraph (a) of this section must report information on the characteristics and experiences of a child in the reporting VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 populations described in § 1355.42. The title IV–E agency must submit the information collected to ACF on a semiannual basis in an out-of-home care data file and adoption assistance data file as required in § 1355.43, pertaining to information described in §§ 1355.44 and 1355.45 and in a format according to ACF’s specifications. (c) Definitions. (1) Terms in 45 CFR 1355.41 through 1355.47 are defined as they appear in 45 CFR 1355.20, except that for purposes of data elements related to the Indian Child Welfare Act of 1978 (ICWA), terms that appear in § 1344.44(b)(3) through (b)(8), (c)(3), (c)(4), (c)(6), (c)(7), (d)(3), (e)(8) through (e)(11), (f)(10), and (h)(20) through (h)(23) are defined as they appear in 25 CFR 23.2 and 25 U.S.C. 1903. (2) For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘yes’’ to § 1355.44(b)(4) or indicated ‘‘yes, ICWA applies’’ to § 1355.44(b)(5), for § 1355.44(c)(1), (c)(2), (d)(4), and (d)(5), the term ‘‘legal guardian’’ includes an Indian custodian as defined in ICWA at 25 U.S.C. 1903 if the Indian custodian has legal responsibility for the child. § 1355.42 Reporting populations. (a) Out-of-home care reporting population. (1) A title IV–E agency must report a child of any age who is in outof-home care for more than 24 hours. The out-of-home care reporting population includes a child in the following situations: (i) A child in foster care as defined in § 1355.20. (ii) A child on whose behalf title IV– E foster care maintenance payments are made and who is under the placement and care responsibility of another public agency or an Indian tribe, tribal organization or consortium with which the title IV–E agency has an agreement pursuant to section 472(a)(2)(B)(ii) of the Act. (iii) A child who runs away or whose whereabouts are unknown at the time the child is placed under the placement and care responsibility of the title IV– E agency. (2) Once a child enters the out-ofhome care reporting population, the child remains in the out-of-home care reporting population through the end of the report period in which the title IV– E agency’s placement and care responsibility ends, or a child’s title IV– E foster care maintenance payment pursuant to a title IV–E agreement per section 472(a)(2) of the Act ends, regardless of any subsequent living arrangement. (b) Adoption and guardianship assistance reporting population. (1) The PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 90569 title IV–E agency must include in the adoption and guardianship assistance reporting population any child who is: (i) In a finalized adoption under a title IV–E adoption assistance agreement pursuant to section 473(a) of the Act with the reporting title IV–E agency that is or was in effect at some point during the current report period; or (ii) In a legal guardianship under a title IV–E guardianship assistance agreement pursuant to section 473(d) of the Act with the reporting title IV–E agency that is or was in effect at some point during the current report period. (2) A child remains in the adoption or guardianship assistance reporting population through the end of the report period in which the title IV–E agreement ends or is terminated. § 1355.43 Data reporting requirements. (a) Report periods and deadlines. There are two six-month report periods based on the Federal fiscal year: October 1 to March 31 and April 1 to September 30. The title IV–E agency must submit the out-of-home care and adoption assistance data files to ACF within 45 days of the end of the report period (i.e., by May 15 and November 14). If the reporting deadline falls on a weekend, the title IV–E agency has through the end of the following Monday to submit the data file. (b) Out-of-home care data file. A title IV–E agency must report the information required in § 1355.44 pertaining to each child in the out-ofhome 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 § 1355.44(a) and (b). (2) Except as provided in paragraph (b)(3) of this section, the title IV–E agency must report the most recent information and all historical information for the applicable data elements described in § 1355.44(c) through (h). (3) For a child who had an out-ofhome care episode(s) as defined in § 1355.42(a) prior to October 1, 2019, the title IV–E agency must report only the information for the data elements described in § 1355.44(d)(1), (g)(1) and (g)(3) for the out-of-home care episode(s) that occurred prior to October 1, 2019. (c) Adoption and guardianship assistance data file. A title IV–E agency must report the most recent information for the applicable data elements in § 1355.45 that pertains to each child in the adoption and guardianship assistance reporting population on the last day of the report period. E:\FR\FM\14DER3.SGM 14DER3 90570 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations (d) Missing information. If the title IV–E agency fails to collect the information for a data element, the title IV–E agency must report the element as blank or otherwise missing. The title IV–E agency is not permitted to default or map missing information that was not collected to a valid response option. (e) Electronic submission. The title IV–E agency must submit the required data files electronically and in a format according to ACF’s specifications. (f) Record retention. The title IV–E agency must retain all records necessary to comply with the data requirements in §§ 1355.41 through 1355.45. The title IV–E agency’s retention of such records is not limited to the requirements of 45 CFR 92.42(b) and (c). sradovich on DSK3GMQ082PROD with RULES3 § 1355.44 Out-of-home care data file elements. (a) General information. (1) Title IV– E agency. Indicate the title IV–E agency responsible for submitting the AFCARS data in a format according to ACF’s specifications. (2) Report date. The report date corresponds with the end of the report period. Indicate the last month and the year of the report period. (3) Local agency. Indicate the local county, jurisdiction or equivalent unit that has primary responsibility for the child in a format according to ACF’s specifications. (4) Child record number. Indicate the child’s record number. This is an encrypted, unique person identification number that is the same for the child, no matter where the child lives while in the placement and care responsibility of the title IV–E agency in out-of-home care and across all report periods and episodes. The title IV–E agency must apply and retain the same encryption routine or method for the person identification number across all report periods. The record number must be encrypted in accordance with ACF standards. (b) Child information—(1) Child’s date of birth. Indicate the month, day and year of the child’s birth. If the actual date of birth is unknown because the child has been abandoned, provide an estimated date of birth. Abandoned means that the child was left alone or with others and the identity of the parent(s) or legal guardian(s) is unknown and cannot be ascertained. This includes a child left at a ‘‘safe haven.’’ (2)(i) Child’s gender. Indicate whether the child is ‘‘male’’ or ‘‘female,’’ as appropriate. (ii) Child’s sexual orientation. For children age 14 and older, indicate whether the child self identifies as VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 ‘‘straight or heterosexual,’’ ‘‘gay or lesbian,’’ ‘‘bisexual,’’ ‘‘don’t know,’’ ‘‘something else,’’ or ‘‘decline,’’ if the child declined to provide the information. Indicate ‘‘not applicable’’ for children age 13 and under. (3) Reason to know a child is an ‘‘Indian Child’’ as defined in the Indian Child Welfare Act. 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 in 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 who is the subject of the proceeding. Indicate ‘‘yes’’ or ‘‘no.’’ (vi) Indicate whether the child is a member of or eligible for membership in an Indian tribe. Indicate ‘‘yes,’’ ‘‘no,’’ or ‘‘unknown.’’ (vii) 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,’’ ‘‘no,’’ or ‘‘unknown.’’ (4) Application of ICWA. For state title IV–E agencies only: 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 indicated ‘‘yes,’’ then the state title IV–E agency must complete paragraphs (b)(4)(i) and (ii). If the state title IV–E agency indicated ‘‘no,’’ then the state title IV–E agency must leave paragraphs (b)(4)(i) and (ii) of this section blank. (i) 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. (ii) Indicate all federally recognized Indian tribe (s) that may potentially be the Indian child’s tribe(s). The title IV– E agency must submit the information PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 in a format according to ACF’s specifications. (5) Court determination that ICWA applies. For state title IV–E agencies only: 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 indicated ‘‘yes, ICWA applies,’’ the state title IV–E agency must complete paragraphs (b)(5)(i) and (ii). If the state title IV–E agency indicated ‘‘no, ICWA does not apply’’ or ‘‘no court determination,’’ the state title IV–E agency must leave paragraphs (b)(5)(i) and (ii) of this section blank. (i) Indicate the date that the court determined that ICWA applies. (ii) Indicate the Indian tribe that the court determined is the Indian child’s tribe for ICWA purposes. The title IV– E agency must submit the information in a format according to ACF’s specifications. (6) Notification. State title IV–E agencies only: If the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), the state title IV–E agency must complete paragraphs (b)(6)(i) through (iii). Otherwise, leave paragraphs (b)(6)(i) through (iii) of this section blank. (i) Indicate whether the Indian child’s parent or Indian custodian was sent legal notice more than 10 days prior to the first child custody proceeding in accordance with 25 U.S.C. 1912(a). Indicate ‘‘yes’’ or ‘‘no.’’ (ii) Indicate whether the Indian child’s tribe(s) was sent legal notice more than 10 days prior to the first child custody proceeding in accordance with 25 U.S.C. 1912(a). Indicate ‘‘yes’’, ‘‘no’’ or ‘‘the child’s Indian tribe is unknown’’. (iii) Indicate the Indian tribe(s) that were sent notice for a child custody proceeding as required in ICWA at 25 U.S.C. 1912(a). The title IV–E agency must report the information in a format according to ACF’s specifications. (7) Request to transfer to tribal court. For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), indicate whether either parent, the Indian custodian, or the Indian child’s tribe requested, orally on the record or in writing, that the state court transfer a foster-care or termination-of-parental rights proceeding to the jurisdiction of the Indian child’s tribe, in accordance E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations with 25 U.S.C. 1911(b), at any point during the report period. Indicate ‘‘yes’’ or ‘‘no.’’ If the state title IV–E agency indicated ‘‘yes,’’ then the state title IV– E agency must complete paragraph (b)(8) of this section. If the state title IV– E agency indicated ‘‘no,’’ the state title IV–E agency must leave paragraph (b)(8) of this section blank. (8) Denial of transfer. For state title IV–E agencies only: If the state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(7), indicate whether the state court denied the request to transfer the case to tribal jurisdiction. Indicate ‘‘yes’’ or ‘‘no.’’ If the state title IV–E agency indicated ‘‘yes,’’ then the state title IV– E agency must indicate in paragraphs (b)(8)(i) through (iii) of this section whether each reason for denial ‘‘applies’’ or ‘‘does not apply.’’ Otherwise leave these paragraphs blank. (i) Either of the parents objected to transferring the case to the tribal court. (ii) The tribal court declined the transfer to the tribal court. (iii) The state court determined good cause exists for denying the transfer to the tribal court. (9) Child’s race. In general, a child’s race is determined by the child, the child’s parent(s) or legal guardian(s). Indicate whether each race category listed in the data elements described in paragraphs (b)(9)(i) through (viii) of this section applies with a ‘‘yes’’ or ‘‘no.’’ (i) Race—American Indian or Alaska Native. An American Indian or Alaska Native child has origins in any of the original peoples of North or South America (including Central America), and maintains tribal affiliation or community attachment. (ii) Race—Asian. An Asian child has origins in any of the original peoples of the Far East, Southeast Asia or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand and Vietnam. (iii) Race—Black or African American. A Black or African American child has origins in any of the black racial groups of Africa. (iv) Race—Native Hawaiian or Other Pacific Islander. A Native Hawaiian or Other Pacific Islander child has origins in any of the original peoples of Hawaii, Guam, Samoa or other Pacific Islands. (v) Race—White. A white child has origins in any of the original peoples of Europe, the Middle East or North Africa. (vi) Race—unknown. The child or parent or legal guardian does not know or is unable to communicate the race, or at least one race of the child. (vii) Race—abandoned. The child’s race is unknown because the child has VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 been abandoned. Abandoned means that the child was left alone or with others and the identity of the parent(s) or legal guardian(s) is unknown and cannot be ascertained. This includes a child left at a ‘‘safe haven.’’ (viii) Race—declined. The child or parent(s) or legal guardian(s) has declined to identify a race. (10) Child’s Hispanic or Latino ethnicity. In general, a child’s ethnicity is determined by the child or the child’s parent(s) or legal guardian(s). A child is of Hispanic or Latino ethnicity if the child is a person of Cuban, Mexican, Puerto Rican, South or Central American or other Spanish culture or origin, regardless of race. Indicate whether this category applies with a ‘‘yes’’ or ‘‘no.’’ If the child or the child’s parent(s) or legal guardian(s) does not know or is unable to communicate whether the child is of Hispanic or Latino ethnicity, indicate ‘‘unknown.’’ If the child is abandoned indicate ‘‘abandoned.’’ Abandoned means that the child was left alone or with others and the identity of the parent(s) or legal guardian(s) is unknown and cannot be ascertained. This includes a child left at a ‘‘safe haven.’’ If the child or the child’s parent(s) or legal guardian(s) refuses to identify the child’s ethnicity, indicate ‘‘declined.’’ (11)(i) Health assessment. Indicate whether the child had a health assessment during the current out-ofhome care episode. This assessment could include an initial health screening or any follow-up health screening per section 422(b)(15)(A) of the Act. Indicate ‘‘yes’’ or ‘‘no.’’ If the title IV– E agency indicated ‘‘yes,’’ the title IV– E must complete paragraphs (b)(11)(ii) and (b)(12); otherwise leave paragraphs (b)(11)(ii) and (b)(12) of this section blank. (ii) Date of health assessment. Indicate the month, day, and year of the child’s most recent health assessment, if the title IV–E agency reported ‘‘yes’’ in paragraph (b)(11)(i) of this section; otherwise leave this paragraph blank. (12) Timely health assessment. Indicate whether the date reported in paragraph (b)(11)(ii) is within the timeframes for initial and follow-up health screenings established by the title IV–E agency per section 422(b)(15)(A) of the Act. Indicate ‘‘yes’’ or ‘‘no.’’ If the title IV–E agency reported ‘‘no’’ in paragraph (b)(11)(i) of this section, the title IV–E agency must leave this paragraph blank. (13) Health, behavioral or mental health conditions. Indicate whether the child was diagnosed by a qualified professional, as defined by the state or tribe, as having a health, behavioral or PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 90571 mental health condition listed below, prior to or during the child’s current out-of-home care episode as of the last day of the report period. Indicate ‘‘child has a diagnosed condition’’ if a qualified professional has made such a diagnosis and for each data element described in paragraphs (b)(13)(i) through (xii) of this section indicate ‘‘existing condition,’’ ‘‘previous condition’’ or ‘‘does not apply,’’ as applicable. Indicate ‘‘no exam or assessment conducted’’ if a qualified professional has not conducted a medical exam or assessment of the child and leave paragraphs (b)(13)(i) through (xii) blank. Indicate ‘‘exam or assessment conducted and none of the conditions apply’’ if a qualified professional has conducted a medical exam or assessment and has concluded that the child does not have one of the conditions listed below and leave paragraphs (b)(13)(i) through (xii) blank. Indicate ‘‘exam or assessment conducted but results not received’’ if a qualified professional has conducted a medical exam or assessment but the title IV–E agency has not yet received the results of such an exam or assessment and leave paragraphs (b)(13)(i) through (xii) blank. (i) Intellectual disability. The child has, or had previously, significantly sub-average general cognitive and motor functioning existing concurrently with deficits in adaptive behavior manifested during the developmental period that adversely affect the child’s socialization and learning. (ii) Autism spectrum disorder. The child has, or had previously, a neurodevelopment disorder, characterized by social impairments, communication difficulties, and restricted, repetitive, and stereotyped patterns of behavior. This includes the range of disorders from autistic disorder, sometimes called autism or classical autism spectrum disorder, to milder forms known as Asperger syndrome and pervasive developmental disorder not otherwise specified. (iii) Visual impairment and blindness. The child has, or had previously, a visual impairment that may adversely affects the day-to-day functioning or educational performance, such as blindness, amblyopia, or color blindness. (iv) Hearing impairment and deafness. The child has, or had previously, an impairment in hearing, whether permanent or fluctuating, that adversely affects the child’s day-to-day functioning and educational performance. (v) Orthopedic impairment or other physical condition. The child has, or E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90572 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations had previously, a physical deformity, such as amputations and fractures or burns that cause contractures, or an orthopedic impairment, including impairments caused by a congenital anomalies or disease, such as cerebral palsy, spina bifida, multiple sclerosis, or muscular dystrophy. (vi) Mental/emotional disorders. The child has, or had previously, one or more mood or personality disorders or conditions over a long period of time and to a marked degree, such as conduct disorder, oppositional defiant disorder, emotional disturbance, anxiety disorder, obsessive-compulsive disorder, or eating disorder. (vii) Attention deficit hyperactivity disorder. The child has, or had previously, a diagnosis of the neurobehavioral disorders of attention deficit or hyperactivity disorder (ADHD) or attention deficit disorder (ADD). (viii) Serious mental disorders. The child has, or had previously, a diagnosis of a serious mental disorder or illness, such as bipolar disorder, depression, psychotic disorders, or schizophrenia. (ix) Developmental delay. The child has been assessed by appropriate diagnostic instruments and procedures and is experiencing delays in one or more of the following areas: physical development or motor skills, cognitive development, communication, language, or speech development, social or emotional development, or adaptive development. (x) Developmental disability. The child has, or had previously been diagnosed with a developmental disability as defined in the Developmental Disabilities Assistance and Bill of Rights Act of 2000 (Pub. L. 106–402), section 102(8). This means a severe, chronic disability of an individual that is attributable to a mental or physical impairment or combination of mental and physical impairments that manifests before the age of 22, is likely to continue indefinitely and results in substantial functional limitations in three or more areas of major life activity. Areas of major life activity include: Self-care; receptive and expressive language; learning; mobility; self-direction; capacity for independent living; and economic self-sufficiency; and reflects the individual’s need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated. If a child is given the diagnosis of ‘‘developmental disability,’’ do not indicate the individual conditions that form the VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 basis of this diagnosis separately in other data elements. (xi) Other diagnosed condition. The child has, or had previously, a diagnosed condition or other health impairment other than those described above, which requires special medical care, such as asthma, diabetes, chronic illnesses, a diagnosis as HIV positive or AIDS, epilepsy, traumatic brain injury, other neurological disorders, speech/ language impairment, learning disability, or substance use issues. (14) School enrollment. Indicate whether the child is a full-time student at and enrolled in (or in the process of enrolling in) ‘‘elementary’’ or ‘‘secondary’’ education, or is a full or part-time student at and enrolled in ‘‘post-secondary education or training’’ or ‘‘college,’’ as of the earlier of the last day of the report period or the day of exit for a child exiting out-of-home care prior to the end of the report period. A child is still considered enrolled in school if the child would otherwise be enrolled in a school that is currently out of session. An ‘‘elementary or secondary school student’’ is defined in section 471(a)(30) of the Act as a child that is: enrolled (or in the process of enrolling) in an institution which provides elementary or secondary education, as determined under the law of the state or other jurisdiction in which the institution is located; instructed in elementary or secondary education at home in accordance with a home school law of the state or other jurisdiction in which the home is located; in an independent study elementary or secondary education program in accordance with the law of the state or other jurisdiction in which the program is located, which is administered by the local school or school district; or incapable of attending school on a fulltime basis due to the medical condition of the child, which incapability is supported by a regularly updated information in the case plan of the child. Enrollment in ‘‘post-secondary education or training’’ refers to full or part-time enrollment in any postsecondary education or training, other than an education pursued at a college or university. Enrollment in ‘‘college’’ refers to a child that is enrolled full or part-time at a college or university. If child has not reached compulsory school age, indicate ‘‘not school-age.’’ If the child has reached compulsory school-age, but is not enrolled or is in the process of enrolling in any school setting full-time, indicate ‘‘not enrolled.’’ (15) Educational level. Indicate the highest educational level from kindergarten to college or post- PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 secondary education/training completed by the child as of the last day of the report period. If child has not reached compulsory school-age, indicate ‘‘not school-age.’’ Indicate ‘‘kindergarten’’ if the child is currently in or about to begin 1st grade. Indicate ‘‘1st grade’’ if the child is currently in or about to begin 2nd grade. Indicate ‘‘2nd grade’’ if the child is currently in or about to begin 3rd grade. Indicate ‘‘3rd grade’’ if the child is currently in or about to begin 4th grade. Indicate ‘‘4th grade’’ if the child is currently in or about to begin 5th grade. Indicate ‘‘5th grade’’ if the child is currently in or about to begin 6th grade. Indicate ‘‘6th grade’’ if the child is currently in or about to begin 7th grade. Indicate ‘‘7th grade’’ if the child is currently in or about to begin 8th grade. Indicate ‘‘8th grade’’ if the child is currently in or about to begin 9th grade. Indicate ‘‘9th grade’’ if the child is currently in or about to begin 10th grade. Indicate ‘‘10th grade’’ if the child is currently in or about to begin 11th grade. Indicate ‘‘11th grade’’ if the child is currently in or about to begin 12th grade. Indicate ‘‘12th grade’’ if the child has graduated from high school. Indicate ‘‘GED’’ if the child has completed a general equivalency degree or other high school equivalent. Indicate ‘‘Post-secondary education or training’’ if the child has completed any postsecondary education or training, including vocational training, other than an education pursued at a college or university. Indicate ‘‘College’’ if the child has completed at least a semester of study at a college or university. (16) Educational stability. Indicate if the child is enrolled or is in the process of enrolling in a new elementary or secondary school prompted by an initial placement after entry into foster care or a placement change during the report period with ‘‘yes’’ or ‘‘no’’ as appropriate. If ‘‘yes,’’ indicate which of the applicable reason(s) for the change in enrollment as described in paragraphs (b)(16)(i) through (vii) of this section ‘‘applies’’ or ‘‘does not apply;’’ if ‘‘no,’’ the title IV–E agency must leave those data elements blank. (i) Proximity. The child enrolled in a new school because of the distance to his or her former school. (ii) District/zoning rules. The child enrolled in a new school because county or jurisdictional law or regulations prohibited attendance at former school. (iii) Residential facility. The child enrolled in a new school because he or she formerly attended school on the campus of a residential facility. (iv) Services/programs. The child enrolled in a new school to participate in services or programs (academic, E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations behavioral or supportive services) not offered at former school. (v) Child request. The child enrolled in a new school because he or she requested to leave former school and enroll in new school. (vi) Parent/Legal guardian request. The child enrolled in a new school because his or her parent(s) or legal guardian(s) requested for the child to leave the former school and enroll in a new school. (vii) Other. The child enrolled in a new school for a reason other than those detailed in paragraphs (b)(13)(i) through (vi) of this section. (17) Pregnant or parenting. (i) Indicate whether the child is pregnant as of the end of the report period. Indicate ‘‘yes’’ or ‘‘no.’’ (ii) Indicate whether the child has ever fathered or bore a child. Indicate ‘‘yes’’ or ‘‘no.’’ (iii) Indicate whether the child and his/her child(ren) are placed together at any point during the report period, if the response in paragraph (b)(17)(ii) is ‘‘yes.’’ Indicate ‘‘yes,’’ ‘‘no,’’ or ‘‘not applicable’’ if the response in paragraph (b)(17)(ii) of this section is ‘‘no.’’ (18) Special education. Indicate whether the child has an Individualized Education Program (IEP) as defined in section 614(d)(1) of Part B of Title I of the Individuals with Disabilities Education Act (IDEA) and implementing regulations, or an Individualized Family Service Program (IFSP) as defined in section 636 of Part C of Title I of IDEA and implementing regulations, as of the end of the report period. Indicate ‘‘yes’’ if the child has either an IEP or an IFSP or ‘‘no’’ if the child has neither. (19) Prior adoption. Indicate whether the child experienced a prior legal adoption before the current out-of-home care episode. Include any public, private or independent adoption in the United States or adoption in another country and tribal customary adoptions. Indicate ‘‘yes,’’ ‘‘no’’ or ‘‘abandoned’’ if the information is unknown because the child has been abandoned. Abandoned means that the child was left alone or with others and the identity of the parent(s) or legal guardian(s) is unknown and cannot be ascertained. This includes a child left at a ‘‘safe haven.’’ If the child has experienced a prior legal adoption, the title IV–E agency must complete paragraphs (b)(19)(i) and (ii) of this section; otherwise the title IV–E agency must leave those data elements blank. (i) Prior adoption date. Indicate the month and year that the most recent prior adoption was finalized. In the case of a prior intercountry adoption where the adoptive parent(s) readopted the VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 child in the United States, the title IV–E agency must provide the date of the adoption (either the original adoption in the home country or the readoption in the United States) that is considered final in accordance with applicable laws. (ii) Prior adoption intercountry. Indicate whether the child’s most recent prior adoption was an intercountry adoption, meaning that the child’s prior adoption occurred in another country or the child was brought into the United States for the purposes of finalizing the prior adoption. Indicate ‘‘yes’’ or ‘‘no.’’ (20)(i) Prior guardianship. Indicate whether the child experienced a prior legal guardianship before the current out-of-home care episode. Include any public, private or independent guardianship(s) in the United States that meets the definition in section 475(7) of the Act. This includes any judicially created relationship between a child and caretaker which is intended to be permanent and self-sustaining as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: Protection, education, care and control, custody, and decision making. Indicate ‘‘yes,’’ ‘‘no,’’ or ‘‘abandoned’’ if the information is unknown because the child has been abandoned. Abandoned means that the child was left alone or with others and the identity of the parent(s) or legal guardian(s) is unknown and cannot be ascertained. This includes a child left at a ‘‘safe haven.’’ If the child has experienced a prior legal guardianship, the title IV–E agency must complete paragraph (b)(20)(ii); otherwise the title IV–E agency must leave it blank. (ii) Prior guardianship date. Indicate the month and year that the most recent prior guardianship became legalized. (21) Child financial and medical assistance. Indicate whether the child received financial and medical assistance at any point during the sixmonth report period. Indicate ‘‘child has received support/assistance’’ if the child was the recipient of such assistance during the report period, and indicate which of the following sources of support described in paragraphs (b)(21)(i) through (xiii) of this section ‘‘applies’’ or ‘‘does not apply.’’ Indicate ‘‘no support/assistance received’’ if none of these apply. (i) SSI or Social Security benefits. The child is receiving support from Supplemental Security Income (SSI) or other Social Security benefits under title II or title XVI of the Act. (ii) Title XIX Medicaid. The child is eligible for and may be receiving assistance under the state’s title XIX program for medical assistance, PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 90573 including any benefits through title XIX waivers or demonstration programs. (iii) Title XXI SCHIP. The child is eligible for and receiving assistance under a state’s Children’s Health Insurance Program (SCHIP) under title XXI of the Act, including any benefits under title XXI waivers or demonstration programs. (iv) State/Tribal adoption assistance. The child is receiving an adoption subsidy or other adoption assistance paid for solely by the state or Indian tribe. (v) State/Tribal foster care. The child is receiving a foster care payment that is solely funded by the state or Indian tribe. (vi) Child support. Child support funds are being paid to the title IV–E agency for the benefit of the child by assignment from the receiving parent. (vii) Title IV–E adoption subsidy. The child is determined eligible for a title IV–E adoption assistance subsidy. (viii) Title IV–E guardianship assistance. The child is determined eligible for a title IV–E guardianship assistance subsidy. (ix) Title IV–A TANF. The child is living with relatives who are receiving a Temporary Assistance for Needy Families (TANF) cash assistance payment on behalf of the child. (x) Title IV–B. The child’s living arrangement is supported by funds under title IV–B of the Act. (xi) SSBG. The child’s living arrangement is supported by funds under title XX of the Act. (xii) Chafee Foster Care Independence Program. The child is living independently and is supported by funds under the John F. Chafee Foster Care Independence Program. (xiii) Other. The child is receiving financial support from another source not previously listed above. (22) Title IV–E foster care during report period. Indicate whether a title IV–E foster care maintenance payment was paid on behalf of the child at any point during the report period that is claimed under title IV–E foster care with a ‘‘yes’’ or ‘‘no,’’ as appropriate. Indicate ‘‘yes’’ if the child has met all eligibility requirements of section 472(a) of the Act and the title IV–E agency has claimed, or intends to claim, Federal reimbursement for foster care maintenance payments made on the child’s behalf during the report period. (23) Total number of siblings. Indicate the total number of siblings of the child. A sibling to the child is his or her brother or sister by biological, legal, or marital connection. Do not include the child who is subject of this record in the total number. If the child does not have E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90574 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations any siblings, the title IV–E agency must indicate ‘‘0.’’ If the title IV–E agency indicates ‘‘0,’’ the title IV–E agency must leave paragraphs (b)(24) and (b)(25) of this section blank. (24) Siblings in foster care. Indicate the number of siblings of the child who are in foster care as defined in § 1355.20. A sibling to the child is his or her brother or sister by biological, legal, or marital connection. Do not include the child who is subject of this record in the total number. If the child does not have any siblings, the title IV– E agency must leave this paragraph blank. If the child has siblings, but they are not in foster care as defined in § 1355.20, the title IV–E agency must indicate ‘‘0.’’ If the title IV–E agency reported ‘‘0,’’ leave paragraph (b)(25) of this section blank. (25) Siblings in living arrangement. Indicate the number of siblings of the child who are in the same living arrangement as the child, on the last day of the report period. A sibling to the child is his or her brother or sister by biological, legal, or marital connection. Do not include the child who is subject of this record in the total number. If the child does not have any siblings, the title IV–E agency must leave this paragraph blank. If the child has siblings, but they are not in the same living arrangement as the child, the title IV–E agency must indicate ‘‘0.’’ (c) Parent or legal guardian information—(1) Year of birth of first parent or legal guardian. If applicable, indicate the year of birth of the first parent (biological, legal or adoptive) or legal guardian of the child. To the extent that a child has both a parent and a legal guardian, or two different sets of legal parents, the title IV–E agency must report on those who had legal responsibility for the child. We are not seeking information on putative parent(s) in this paragraph. If there is only one parent or legal guardian of the child, that person’s year of birth must be reported here. If the child was abandoned indicate ‘‘abandoned.’’ Abandoned means that the child was left alone or with others and the identity of the child’s parent(s) or legal guardian(s) is unknown and cannot be ascertained. This includes a child left at a ‘‘safe haven.’’ (2) Year of birth of second parent or legal guardian. If applicable, indicate the year of birth of the second parent (biological, legal or adoptive) or legal guardian of the child. We are not seeking information on putative parent(s) in this paragraph. If the child was abandoned, indicate ‘‘abandoned.’’ Abandoned means that the child was left alone or with others and the identity VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 of the child’s parent(s) or legal guardian(s) is unknown and cannot be ascertained. This includes a child left at a ‘‘safe haven.’’ Indicate ‘‘not applicable’’ if there is not another parent or legal guardian. (3) Tribal membership mother. For state title IV–E agencies only, indicate whether the biological or adoptive mother is a member of an Indian tribe. Indicate ‘‘yes,’’ ‘‘no,’’ or ‘‘unknown.’’ (4) Tribal membership father. For state title IV–E agencies only, indicate whether the biological or adoptive father is a member of an Indian tribe. Indicate ‘‘yes,’’ ‘‘no,’’ or ‘‘unknown.’’ (5) Termination/modification of parental rights. Indicate whether the termination/modification of parental rights for each parent (biological, legal and/or putative) was voluntary or involuntary. Voluntary means the parent voluntary relinquished their parental rights to the title IV–E agency, with or without court involvement. Indicate ‘‘voluntary’’ or ‘‘involuntary.’’ Indicate ‘‘not applicable’’ if there was no termination/modification and leave paragraphs (c)(5)(i), (c)(5)(ii), (c)(6) and (c)(7) of this section blank. (i) Termination/modification of parental rights petition. Indicate the month, day and year that each petition to terminate/modify the parental rights of a biological, legal and/or putative parent was filed in court, if applicable. Indicate ‘‘deceased’’ if the parent is deceased. (ii) Termination/modification of parental rights. Enter the month, day and year that the parental rights were voluntarily or involuntarily terminated/ modified, for each biological, legal and/ or putative parent, if applicable. If the parent is deceased, enter the date of death. (6) Involuntary termination/ modification of parental rights under ICWA. For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), and indicated ‘‘involuntary’’ to paragraph (c)(5), the state title IV–E agency must complete paragraphs (c)(6)(i) through (iii) of this section. (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 with ‘‘yes’’ or ‘‘no.’’ (ii) Indicate whether the court decision to involuntarily terminate parental rights included the testimony of one or more qualified expert PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 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.’’ (7) Voluntary termination/ modification of parental rights under ICWA. For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), and indicated ‘‘voluntary’’ to paragraph (c)(5) of this section, indicate whether the consent to termination of parental or Indian custodian rights was executed in writing and recorded before a court of competent jurisdiction 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.’’ (d) Removal information—(1) Date of child’s removal. Indicate the removal date(s) in month, day and year format for each removal of a child who enters the placement and care responsibility of the title IV–E agency. For a child who is removed and is placed initially in foster care, indicate the date that the title IV–E agency received placement and care responsibility. For a child who ran away or whose whereabouts are unknown at the time the child is removed and is placed in the placement and care responsibility of the title IV– E agency, indicate the date that the title IV–E agency received placement and care responsibility. For a child who is removed and is placed initially in a non-foster care setting, indicate the date that the child enters foster care as the date of removal. (2) Removal transaction date. A nonmodifiable, computer-generated date which accurately indicates the month, day and year each response to paragraph (d)(1) of this section was entered into the information system. (3) Removals under ICWA. For state title IV–E agencies: If the state title IV– E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), the state title IV–E agency must complete paragraphs (d)(3)(i) through (d)(3)(iii) for each removal 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 E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations 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 121(a). Indicate ‘‘yes’’ or ‘‘no.’’ (ii) Indicate whether the evidence presented for foster care placement as indicated in paragraph (d)(3)(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 (d)(3)(i) 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.’’ (4) Environment at removal. Indicate the type of environment (household or facility) the child was living in at the time of each removal for each removal reported in paragraph (d)(1) of this section. Indicate ‘‘parent household’’ if the child was living in a household that included one or both of the child’s parents, whether biological, adoptive or legal. Indicate ‘‘relative household’’ if the child was living with a relative(s), the relative(s) is not the child’s legal guardian and neither of the child’s parents were living in the household. Indicate ‘‘legal guardian household’’ if the child was living with a legal guardian(s), the guardian(s) is not the child’s relative and neither of the child’s parents were living in the household. Indicate ‘‘relative legal guardian household’’ if the child was living with a relative(s) who is also the child’s legal guardian. Indicate ‘‘justice facility’’ if the child was in a detention center, jail or other similar setting where the child was detained. Indicate ‘‘medical/mental health facility’’ if the child was living in a facility such as a medical or psychiatric hospital or residential treatment center. Indicate ‘‘other’’ if the child was living in another situation not so described, such as living independently or homeless. (5) Authority for placement and care responsibility. Indicate the title IV–E agency’s authority for placement and care responsibility of the child for each removal reported in paragraph (d)(1) of this section. ‘‘Court ordered’’ means that the court has issued an order that is the basis for the title IV–E agency’s placement and care responsibility. ‘‘Voluntary placement agreement’’ means that an official voluntary placement agreement has been executed between the parent(s), legal guardian(s), or child age 18 or older and the title IV– VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 E agency. The placement remains voluntary even if a subsequent court order is issued to continue the child in out-of-home care. ‘‘Not yet determined’’ means that a voluntary placement agreement has not been signed or a court order has not been issued. When either a voluntary placement agreement is signed or a court order issued, the record must be updated from ‘‘not yet determined’’ to the appropriate response option to reflect the title IV–E agency’s authority for placement and care responsibility at that time. (6) Child and family circumstances at removal. Indicate all child and family circumstances that were present at the time of the child’s removal and/or related to the child being placed into foster care for each removal reported in paragraph (d)(1) of this section. Indicate whether each circumstance listed in the data elements described in paragraphs (d)(6)(i) through (xxxiii) ‘‘applies’’ or ‘‘does not apply’’ for each removal indicated in paragraph (d)(1) of this section. (i) Runaway. The child has left, without authorization, the home or facility where the child was residing. (ii) Whereabouts unknown. The child’s whereabouts are unknown and the title IV–E agency does not consider the child to have run away. (iii) Physical abuse. Alleged or substantiated physical abuse, injury or maltreatment of the child by a person responsible for the child’s welfare. (iv) Sexual abuse. Alleged or substantiated sexual abuse or exploitation of the child by a person who is responsible for the child’s welfare. (v) Psychological or emotional abuse. Alleged or substantiated psychological or emotional abuse, including verbal abuse, of the child by a person who is responsible for the child’s welfare. (vi) Neglect. Alleged or substantiated negligent treatment or maltreatment of the child, including failure to provide adequate food, clothing, shelter, supervision or care by a person who is responsible for the child’s welfare. (vii) Medical neglect. Alleged or substantiated medical neglect caused by a failure to provide for the appropriate health care of the child by a person who is responsible for the child’s welfare, although the person was financially able to do so, or was offered financial or other means to do so. (viii) Domestic violence. Alleged or substantiated violent act(s), including any forceful detention of an individual, that results in, threatens to result in, or attempts to cause physical injury or mental harm. This is committed by a person against another individual PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 90575 residing in the child’s home and with whom such person is in an intimate relationship; dating relationship; is or was related by marriage; or has a child in common. This circumstance includes domestic violence between the child and his or her partner and applies to a child or youth of any age (including those younger and older than the age of majority. This does not include alleged or substantiated maltreatment of the child by a person who is responsible for the child’s welfare. (ix) Abandonment. The child was left alone or with others and the parent or legal guardian’s identity is unknown and cannot be ascertained. This includes a child left at a ‘‘safe haven.’’ This category does not apply when the identity of the parent(s) or legal guardian(s) is known. (x) Failure to return. The parent, legal guardian or caretaker did not or has not returned for the child or made his or her whereabouts known. This category does not apply when the identity of the parent, legal guardian or caretaker is unknown. (xi) Caretaker’s alcohol use. A parent, legal guardian or other caretaker responsible for the child uses alcohol compulsively that is not of a temporary nature. (xii) Caretaker’s drug use. A parent, legal guardian or other caretaker responsible for the child uses drugs compulsively that is not of a temporary nature. (xiii) Child alcohol use. The child uses alcohol. (xiv) Child drug use. The child uses drugs. (xv) Prenatal alcohol exposure. The child has been identified as prenatally exposed to alcohol, resulting in fetal alcohol spectrum disorders such as fetal alcohol exposure, fetal alcohol effect or fetal alcohol syndrome. (xvi) Prenatal drug exposure. The child has been identified as prenatally exposed to drugs. (xvii) Diagnosed condition. The child has a clinical diagnosis by a qualified professional of a health, behavioral or mental health condition, such as one or more of the following: Intellectual disability, emotional disturbance, specific learning disability, hearing, speech or sight impairment, physical disability or other clinically diagnosed condition. (xviii) Inadequate access to mental health services. The child and/or child’s family has inadequate resources to access the necessary mental health services outside of the child’s out-ofhome care placement. (xix) Inadequate access to medical services. The child and/or child’s family E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90576 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations has inadequate resources to access the necessary medical services outside of the child’s out-of-home care placement. (xx) Child behavior problem. The child’s behavior in his or her school and/or community adversely affects his or her socialization, learning, growth and/or moral development. This includes all child behavior problems, as well as adjudicated and non-adjudicated status or delinquency offenses and convictions. (xxi) Death of caretaker. Existing family stress in caring for the child or an inability to care for the child due to the death of a parent, legal guardian or other caretaker. (xxii) Incarceration of caretaker. The child’s parent, legal guardian or caretaker is temporarily or permanently placed in jail or prison which adversely affects his or her ability to care for the child. (xxiii) Caretaker’s significant impairment—physical/emotional. A physical or emotional illness or disabling condition of the child’s parent, legal guardian or caretaker that adversely limits his or her ability to care for the child. (xxiv) Caretaker’s significant impairment—cognitive. The child’s parent, legal guardian or caretaker has cognitive limitations that impact his or her ability to function in areas of daily life, which adversely affect his or her ability to care for the child. It also may be characterized by a significantly below-average score on a test of mental ability or intelligence. (xxv) Inadequate housing. The child’s or his or her family’s housing is substandard, overcrowded, unsafe or otherwise inadequate which results in it being inappropriate for the child to reside. (xxvi) Voluntary relinquishment for adoption. The child’s parent has voluntarily relinquished the child by assigning the physical and legal custody of the child to the title IV–E agency, in writing, for the purpose of having the child adopted. (xxvii) Child requested placement. The child, age 18 or older, has requested placement into foster care. (xxviii) Sex trafficking. The child is a victim of sex trafficking at the time of removal. (xxix) Parental immigration detainment or deportation. The parent is or was detained or deported by immigration officials. (xxx) Family conflict related to child’s sexual orientation, gender identity, or gender expression. There is family conflict related to the child’s sexual orientation, gender identity, or gender expression. This includes the child’s VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 expressed identity or perceived status as lesbian, gay, bisexual, transgender, questioning, queer, or gender nonconforming. This also includes any conflict related to the ways in which a child manifests masculinity or femininity. (xxxi) Educational neglect. Alleged or substantiated failure of a parent or caregiver to enroll a child of mandatory school age in school or provide appropriate home schooling or needed special educational training, thus allowing the child or youth to engage in chronic truancy. (xxxii) Public agency title IV–E agreement. The child is in the placement and care responsibility of another public agency that has an agreement with the title IV–E agency pursuant to section 472(a)(2)(B) of the Act and on whose behalf title IV–E foster care maintenance payments are made (xxxiii) Tribal title IV–E agreement. The child is in the placement and care responsibility of an Indian tribe, tribal organization or consortium with which the title IV–E agency has an agreement and on whose behalf title IV–E foster care maintenance payments are made. (xxxiv) Homelessness. The child or his or her family has no regular or adequate place to live. This includes living in a car, or on the street, or staying in a homeless or other temporary shelter. (7) Victim of sex trafficking prior to entering foster care. Indicate whether the child had been a victim of sex trafficking before the current out-ofhome care episode. Indicate ‘‘yes’’ if the child was a victim or ‘‘no’’ if the child had not been a victim. (i) Report to law enforcement. If the title IV–E agency indicated ‘‘yes’’ in paragraph (d)(7), indicate whether the title IV–E agency made a report to law enforcement for entry into the National Crime Information Center (NCIC) database. Indicate ‘‘yes’’ if the agency made a report to law enforcement and indicate ‘‘no’’ if the agency did not make a report. (ii) Date. If the title IV–E agency indicated ‘‘yes’’ in paragraph (d)(7)(i) of this section, indicate the date that the agency made the report to law enforcement. (8) Victim of sex trafficking while in foster care. Indicate ‘‘yes’’ if the child was a victim of sex trafficking while in out-of-home care during the current outof-home care episode. Indicate ‘‘no’’ if the child was not a victim of sex trafficking during the current out-ofhome care episode. (i) Report to law enforcement. If the title IV–E agency indicated ‘‘yes’’ in this PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 paragraph (d)(8) of this section, indicate whether the agency made a report to law enforcement for entry into the NCIC database. Indicate ‘‘yes’’ if the title IV– E agency made a report(s) to law enforcement and indicate ‘‘no’’ if the title IV–E agency did not make a report. (ii) Date. If the title IV–E agency indicated ‘‘yes’’ in paragraph (d)(8)(i), indicate the date(s) the agency made the report(s) to law enforcement. (e) Living arrangement and provider information—(1) Date of living arrangement. Indicate the month, day and year representing the first date of placement in each of the child’s living arrangements for each out-of-home care episode. In the case of a child who has run away, whose whereabouts are unknown, or who is already in a living arrangement and remains there when the title IV–E agency receives placement and care responsibility, indicate the date of the VPA or court order providing the title IV–E agency with placement and care responsibility for the child, rather than the date when the child was originally placed in the living arrangement. (2) Foster family home. Indicate whether each of the child’s living arrangements is a foster family home, with a ‘‘yes’’ or ‘‘no’’ as appropriate. If the child has run away or the child’s whereabouts are unknown, indicate ‘‘no.’’ If the title IV–E agency indicates that the child is living in a foster family home, by indicating ‘‘yes,’’ the title IV– E agency must complete the data element Foster family home type in paragraph (e)(3) of this section. If the title IV–E agency indicates ‘‘no,’’ the title IV–E agency must complete the data element Other living arrangement type in paragraph (e)(4). (3) Foster family home type. If the title IV–E agency indicated that the child is living in a foster family home in the data element described in paragraph (e)(2), indicate whether each foster family home type listed in the data elements in paragraphs (e)(3)(i) through (e)(3)(vi) of this section applies or does not apply; otherwise the title IV–E agency must leave this data element blank. (i) Licensed home. The child’s living arrangement is licensed or approved by the state or tribal licensing/approval authority. (ii) Therapeutic foster family home. The home provides specialized care and services. (iii) Shelter care foster family home. The home is so designated by the state or tribal licensing/approval authority, and is designed to provide short-term or transitional care. E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations (iv) Relative foster family home. The foster parent(s) is related to the child by biological, legal or marital connection and the relative foster parent(s) lives in the home as his or her primary residence. (v) Pre-adoptive home. The home is one in which the family and the title IV–E agency have agreed on a plan to adopt the child. (vi) Kin foster family home. The home is one in which there is a kin relationship as defined by the title IV– E agency, such as one where there is a psychological, cultural or emotional relationship between the child or the child’s family and the foster parent(s) and there is not a legal, biological, or marital connection between the child and foster parent. (4) Other living arrangement type. If the title IV–E agency indicated that the child’s living arrangement is other than a foster family home in the data element Foster family home in paragraph (e)(2) of this section, indicate the type of setting; otherwise the title IV–E agency must leave this data element blank. Indicate ‘‘group home-family operated’’ if the child is in a group home that provides 24-hour care in a private family home where the family members are the primary caregivers. Indicate ‘‘group home-staff operated’’ if the child is in a group home that provides 24hour care for children where the caregiving is provided by shift or rotating staff. Indicate ‘‘group home-shelter care’’ if the child is in a group home that provides 24-hour care which is shortterm or transitional in nature, and is designated by the state or tribal licensing/approval authority to provide shelter care. Indicate ‘‘residential treatment center’’ if the child is in a facility that has the purpose of treating children with mental health or behavioral conditions. Indicate ‘‘child care institution’’ if the child is in a private child care institution, or a public child care institution which accommodates no more than 25 children, and is licensed by the state or tribal authority responsible for licensing or approving child care institutions. This does not include detention facilities, forestry camps, training schools or any other facility operated primarily for the detention of children who are determined to be delinquent. Indicate ‘‘child care institution-shelter care’’ if the child is in a child care institution as defined above and the institution is designated to provide shelter care by the state or tribal authority responsible for licensing or approving child care institutions and is short-term or transitional in nature. Indicate ‘‘supervised independent VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 living’’ if the child is living independently in a supervised setting. Indicate ‘‘juvenile justice facility’’ if the child is in a secure facility or institution where alleged or adjudicated juvenile delinquents are housed. Indicate ‘‘medical or rehabilitative facility’’ if the child is in a facility where an individual receives medical or physical health care, such as a hospital. Indicate ‘‘psychiatric hospital’’ if the child is in a facility that provides emotional or psychological health care and is licensed or accredited as a hospital. Indicate ‘‘runaway’’ if the child has left, without authorization, the home or facility where the child was placed. Indicate ‘‘whereabouts unknown’’ if the child is not in the physical custody of the title IV–E agency or person or institution with whom the child has been placed, the child’s whereabouts are unknown and the title IV–E agency does not consider the child to have run away. Indicate ‘‘placed at home’’ if the child is home with the parent(s) or legal guardian(s) in preparation for the title IV–E agency to return the child home permanently. (5) Private agency living arrangement. Indicate the type of contractual relationship with a private agency for each of the child’s living arrangements reported in paragraph (e)(1) of this section. Indicate ‘‘private agency involvement’’ if the child is placed in a living arrangement that is either licensed, managed, or run by a private agency that is under contract with the title IV–E agency. Indicate ‘‘no private agency involvement’’ if the child’s living arrangement is not licensed, managed or run by a private agency. (6) Location of living arrangement. Indicate whether each of the child’s living arrangements reported in paragraph (e)(1) of this section is located within or outside of the reporting state or tribal service area or is outside of the country. Indicate ‘‘out-of-state or out-oftribal service area’’ if the child’s living arrangement is located outside of the reporting state or tribal service area but inside the United States. Indicate ‘‘instate or in-tribal service area’’ if the child’s living arrangement is located within the reporting state or tribal service area. Indicate ‘‘out-of-country’’ if the child’s living arrangement is outside of the United States. Indicate ‘‘runaway or whereabouts unknown’’ if the child has run away from his or her living arrangement or the child’s whereabouts are unknown. If the title IV–E agency indicates either ‘‘out-of-state or out-oftribal service area’’ or ‘‘out-of-country’’ for the child’s living arrangement, the title IV–E agency must complete the data element in paragraph (e)(7) of this PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 90577 section; otherwise the title IV–E agency must leave paragraph (e)(7) blank. (7) Jurisdiction or country where child is living. Indicate the state, tribal service area, Indian reservation, or country where the reporting title IV–E agency placed the child for each living arrangement, if the title IV–E agency indicated either ‘‘out-of-state’’ or ‘‘outof-tribal service area’’ or ‘‘out-ofcountry’’ in paragraph (e)(6) of this section; otherwise the title IV–E agency must leave paragraph (e)(7) blank. The title IV–E agency must report the information in a format according to ACF’s specifications. (8) Available ICWA foster care and pre-adoptive placement preferences. For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), indicate which foster care or preadoptive placements that meet the placement preferences of ICWA in 25 U.S.C. 1915(b) were willing to accept placement for each of the child’s living arrangements reported in paragraph (e)(1) of this section. Indicate in each paragraph (e)(8)(i) through (v) of this section ‘‘yes’’ or ‘‘no.’’ (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. (v) A placement that complies with the order of preference for foster care or pre-adoptive placements established by an Indian child’s tribe, in accordance with 25 U.S.C. 1915(c). (9) Foster care and pre-adoptive placement preferences under ICWA. For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), for each of the Indian child’s foster care or pre-adoptive placement(s) reported in paragraph (e)(1) of this section, indicate whether the placement meets the placement preferences of ICWA in 25 U.S.C. 1915(b) 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 E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90578 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations 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, in accordance with 25 U.S.C. 1915(c)’’ 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 (e)(10). Otherwise, the state title IV–E agency must leave paragraph (e)(10) blank. (10) Good cause under ICWA. For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘placement does not meet ICWA placement preferences’’ in paragraph (e)(9), 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 (e)(11) of this section. If the state title IV–E agency indicated ‘‘no,’’ then the state title IV–E agency must leave paragraph (e)(11) blank. (11) Basis for good cause. For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘yes’’ to paragraph (e)(10), indicate the state court’s basis for determining good cause to depart from ICWA placement preferences by indicating ‘‘yes’’ or ‘‘no’’ in each paragraph (e)(11)(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. (12) Marital status of the foster parent(s). Indicate the marital status of the child’s foster parent(s) for each foster family home living arrangement in which the child is placed, as VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 indicated in paragraph (e)(3) of this section. Indicate ‘‘married couple’’ if the foster parents are considered united in matrimony according to applicable laws. Include common law marriage, where provided by applicable laws. Indicate ‘‘unmarried couple’’ if the foster parents are living together as a couple, but are not united in matrimony according to applicable laws. Indicate ‘‘separated’’ if the foster parent is legally separated or is living apart from his or her spouse. Indicate ‘‘single adult’’ if the foster parent is not married and is not living with another individual as part of a couple. If the response is either ‘‘married couple’’ or ‘‘unmarried couple,’’ the title IV–E agency must complete the data elements for the second foster parent in paragraphs (e)(20) through (e)(25) of this section; otherwise the title IV–E agency must leave those data elements blank. (13) Child’s relationships to the foster parent(s). Indicate the type of relationship between the child and his or her foster parent(s), for each foster family home living arrangement in which the child is placed, as indicated in paragraph (e)(3) of this section. Indicate ‘‘paternal grandparent(s)’’ if the foster parent(s) is the child’s paternal grandparent (by biological, legal or marital connection). Indicate ‘‘maternal grandparent(s)’’ if the foster parent(s) is the child’s maternal grandparent (by biological, legal or marital connection). Indicate ‘‘other paternal relative(s)’’ if the foster parent(s) is the child’s paternal relative (by biological, legal or marital connection) other than a grandparent, such as an aunt, uncle or cousin. Indicate ‘‘other maternal relative(s)’’ if the foster parent(s) is the child’s maternal relative (by biological, legal or marital connection) other than a grandparent, such as an aunt, uncle or cousin. Indicate ‘‘sibling(s)’’ if the foster parent(s) is a brother or sister of the child, either biologically, legally or by marriage. Indicate ‘‘non-relative(s)’’ if the foster parent(s) is not related to the child (by biological, legal or marital connection). Indicate ‘‘kin’’ if the foster parent(s) has kin relationship to the child as defined by the title IV–E agency, such as one where there is a psychological, cultural or emotional relationship between the child or the child’s family and the foster parent(s) and there is not a legal, biological, or marital connection between the child and foster parent. (14) Year of birth for first foster parent. Indicate the year of birth for the first foster parent for each foster family home living arrangement in which the child is placed, as indicated in paragraph (e)(3) of this section. PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 (15) First foster parent tribal membership. Indicate whether the first foster parent is a member of an Indian tribe. Indicate ‘‘yes,’’ ‘‘no,’’ or ‘‘unknown.’’ (16) Race of first foster parent. Indicate the race of the first foster parent for each foster family home living arrangement in which the child is placed, as indicated in paragraph (e)(3) of this section. In general, an individual’s race is determined by the individual. Indicate whether each race category listed in the data elements described in paragraphs (e)(16)(i) through (vii) of this section applies with a ‘‘yes’’ or ‘‘no.’’ (i) Race—American Indian or Alaska Native. An American Indian or Alaska Native individual has origins in any of the original peoples of North or South America (including Central America) and maintains tribal affiliation or community attachment. (ii) Race—Asian. An Asian individual has origins in any of the original peoples of the Far East, Southeast Asia or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand and Vietnam. (iii) Race—Black or African American. A Black or African American individual has origins in any of the black racial groups of Africa. (iv) Race—Native Hawaiian or Other Pacific Islander. A Native Hawaiian or Other Pacific Islander individual has origins in any of the original peoples of Hawaii, Guam, Samoa or other Pacific Islands. (v) Race—White. A White individual has origins in any of the original peoples of Europe, the Middle East or North Africa. (vi) Race—unknown. The foster parent does not know his or her race, or at least one race. (vii) Race—declined. The first foster parent has declined to identify a race. (17) Hispanic or Latino ethnicity of first foster parent. Indicate the Hispanic or Latino ethnicity of the first foster parent for each foster family home living arrangement in which the child is placed, as indicated in paragraph (e)(3) of this section. In general, an individual’s ethnicity is determined by the individual. An individual is of Hispanic or Latino ethnicity if the individual is a person of Cuban, Mexican, Puerto Rican, South or Central American or other Spanish culture or origin, regardless of race. Indicate whether this category applies with a ‘‘yes’’ or ‘‘no.’’ If the first foster parent does not know his or her ethnicity indicate ‘‘unknown.’’ If the individual E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations refuses to identify his or her ethnicity, indicate ‘‘declined.’’ (18) Gender of first foster parent. Indicate whether the first foster parent self identifies as ‘‘female’’ or ‘‘male.’’ (19) First foster parent sexual orientation. Indicate whether the first foster parent self identifies as ‘‘straight or heterosexual,’’ ‘‘gay or lesbian,’’ ‘‘bisexual,’’ ‘‘don’t know,’’ ‘‘something else,’’ or ‘‘declined’’ if the first foster parent declined to identify his/her status. (20) Year of birth for second foster parent. Indicate the birth year of the second foster parent for each foster family home living arrangement in which the child is placed, as indicated in paragraph (e)(3) of this section, if applicable. The title IV–E agency must leave this data element blank if there is no second foster parent according to paragraph (e)(12) of this section. (21) Second foster parent tribal membership. Indicate whether the second foster parent is a member of an Indian tribe. Indicate ‘‘yes,’’ ‘‘no,’’ or ‘‘unknown.’’ (22) Race of second foster parent. Indicate the race of the second foster parent for each foster family home living arrangement in which the child is placed, as indicated in paragraph (e)(3) of this section, if applicable. In general, an individual’s race is determined by the individual. Indicate whether each race category listed in the data elements described in paragraphs (e)(22)(i) through (vii) of this section applies with a ‘‘yes’’ or ‘‘no.’’ The title IV–E agency must leave this data element blank if there is no second foster parent according to paragraph (e)(12) of this section. (i) Race—American Indian or Alaska Native. An American Indian or Alaska Native individual has origins in any of the original peoples of North or South America (including Central America) and maintains tribal affiliation or community attachment. (ii) Race—Asian. An Asian individual has origins in any of the original peoples of the Far East, Southeast Asia or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand and Vietnam. (iii) Race—Black or African American. A Black or African American individual has origins in any of the black racial groups of Africa. (iv) Race—Native Hawaiian or Other Pacific Islander. A Native Hawaiian or Other Pacific Islander individual has origins in any of the original peoples of Hawaii, Guam, Samoa or other Pacific Islands. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 (v) Race—White. A White individual has origins in any of the original peoples of Europe, the Middle East or North Africa. (vi) Race—unknown. The second foster parent does not know his or her race, or at least one race. (vii) Race—declined. The second foster parent has declined to identify a race. (23) Hispanic or Latino ethnicity of second foster parent. Indicate the Hispanic or Latino ethnicity of the second foster parent for each foster family home living arrangement in which the child is placed, as indicated in paragraph (e)(3) of this section, if applicable. In general, an individual’s ethnicity is determined by the individual. An individual is of Hispanic or Latino ethnicity if the individual is a person of Cuban, Mexican, Puerto Rican, South or Central American or other Spanish culture or origin, regardless of race. Indicate whether this category applies with a ‘‘yes’’ or ‘‘no.’’ If the second foster parent does not know his or her ethnicity, indicate ‘‘unknown.’’ If the individual refuses to identify his or her ethnicity, indicate ‘‘declined.’’ The title IV–E agency must leave this data element blank if there is no second foster parent according to paragraph (e)(12) of this section. (24) Gender of second foster parent. Indicate whether the second foster parent self identifies as ‘‘female’’ or ‘‘male.’’ (25) Second foster parent sexual orientation. Indicate whether the second foster parent self identifies as ‘‘straight or heterosexual,’’ ‘‘gay or lesbian,’’ ‘‘bisexual,’’ ‘‘don’t know,’’ ‘‘something else,’’ or ‘‘declined’’ if the second foster parent declined to identify his/her status. (f) Permanency planning—(1) Permanency plan. Indicate each permanency plan established for the child. Indicate ‘‘reunify with parent(s) or legal guardian(s)’’ if the plan is to keep the child in out-of-home care for a limited time and the title IV–E agency is to work with the child’s parent(s) or legal guardian(s) to establish a stable family environment. Indicate ‘‘live with other relatives’’ if the plan is for the child to live permanently with a relative(s) (by biological, legal or marital connection) who is not the child’s parent(s) or legal guardian(s). Indicate ‘‘adoption’’ if the plan is to facilitate the child’s adoption by relatives, foster parents, kin or other unrelated individuals. Indicate ‘‘guardianship’’ if the plan is to establish a new legal guardianship. Indicate ‘‘planned permanent living arrangement’’ if the plan is for the child to remain in foster PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 90579 care until the title IV–E agency’s placement and care responsibility ends. The title IV–E agency must only select ‘‘planned permanent living arrangement’’ consistent with the requirements in section 475(5)(C)(i) of the Act. Indicate ‘‘permanency plan not established’’ if a permanency plan has not yet been established. (2) Date of permanency plan. Indicate the month, day and year that each permanency plan(s) was established during each out-of-home care episode. (3) Date of periodic review. Enter the month, day and year of each periodic review, either by a court or by administrative review (as defined in section 475(6) of the Act) that meets the requirements of section 475(5)(B) of the Act. (4) Date of permanency hearing. Enter the month, day and year of each permanency hearing held by a court or an administrative body appointed or approved by the court that meets the requirements of section 475(5)(C) of the Act. (5) Juvenile justice. Indicate whether the child was found to be a status offender or adjudicated delinquent by a juvenile judge or court at any time during the report period. A status offense is specific to juveniles, such as running away, truancy or underage alcohol violations. Indicate ‘‘yes’’ or ‘‘no.’’ (6) Caseworker visit dates. Enter each date in which a caseworker had an inperson, face-to-face visit with the child consistent with section 422(b)(17) of the Act. Indicate the month, day and year of each visit. (7) Caseworker visit location. Indicate the location of each in-person, face-toface visit between the caseworker and the child. Indicate ‘‘child’s residence’’ if the visit occurred at the location where the child is currently residing, such as the current foster care provider’s home, child care institution or facility. Indicate ‘‘other location’’ if the visit occurred at any location other than where the child currently resides, such as the child’s school, a court, a child welfare office or in the larger community. (8) Transition plan. Indicate whether a child has a transition plan that meets the requirements of section 475(5)(H) of the Act, including plans developed before the 90-day period. Indicate ‘‘yes,’’ ‘‘no’’ or ‘‘not applicable.’’ (9) Date of transition plan. Indicate the month, day and year of the child’s transition plan, if the title IV–E agency indicated in paragraph (f)(8) of this section that the child has a transition plan that meets the requirements of section 475(5)(H) of the Act; otherwise leave this paragraph blank. E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90580 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations (10) Active efforts. For state title IV– E agencies only: If the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), indicate whether the active efforts in each paragraph (f)(10)(i) through (xiii) ‘‘applies’’ or ‘‘does not apply.’’ The state title IV–E agency must indicate all of the active efforts that apply once the child enters the AFCARS out-of-home care reporting population per § 1355.42(a) through the child’s exit per paragraph (g)(1) of this section and the active efforts made prior to the child entering the out-of-home care reporting population. (i) Assist the parent(s) or Indian custodian through the steps of a case plan and with developing the resources necessary to satisfy the case plan. (ii) Conduct a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal. (iii) Identify appropriate services to help the parent overcome barriers, including actively assisting the parents in obtaining such services. (iv) Identify, notify and invite representatives of the Indian child’s tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning and resolution of placement issues. (v) Conduct or cause to be conducted a diligent search for the Indian child’s extended family members, and contact and consult with extended family members to provide family structure and support for the Indian child and the Indian child’s parents. (vi) Offer and employ all available and culturally appropriate family preservation strategies and facilitate the use of remedial and rehabilitative services provide by the child’s tribe. (vii) Take steps to keep siblings together whenever possible. (viii) Support regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child. (ix) Identify community resources including housing, financial, transportation, mental health, substance use and peer support services and actively assisting the Indian child’s parents or when appropriate, the child’s family, in utilizing and accessing those resources. (x) Monitor progress and participation in services. (xi) Consider alternative ways to address the needs of the Indian child’s VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 parents and, where appropriate, the family, if the optimum services do not exist or are not available. (xii) Provide post-reunification services and monitoring. (xiii) Other active efforts tailored to the facts and circumstances of the case. (g) General exit information. Provide exit information for each out-of-home care episode. An exit occurs when the title IV–E agency’s placement and care responsibility of the child ends. (1) Date of exit. Indicate the month, day and year for each of the child’s exits from out-of-home care. An exit occurs when the title IV–E agency’s placement and care responsibility of the child ends. If the child has not exited out-ofhome care the title IV–E agency must leave this data element blank. If this data element is applicable, the data elements in paragraphs (g)(2) and (3) of this section must have a response. (2) Exit transaction date. A nonmodifiable, computer-generated date which accurately indicates the month, day and year each response to paragraph (g)(1) of this section was entered into the information system. (3) Exit reason. Indicate the reason for each of the child’s exits from out-ofhome care. Indicate ‘‘not applicable’’ if the child has not exited out-of-home care. Indicate ‘‘reunify with parent(s)/ legal guardian(s)’’ if the child was returned to his or her parent(s) or legal guardian(s) and the title IV–E agency no longer has placement and care responsibility. Indicate ‘‘live with other relatives’’ if the child exited to live with a relative (related by a biological, legal or marital connection) other than his or her parent(s) or legal guardian(s). Indicate ‘‘adoption’’ if the child was legally adopted. Indicate ‘‘emancipation’’ if the child exited care due to age. Indicate ‘‘guardianship’’ if the child exited due to a legal guardianship of the child. Indicate ‘‘runaway or whereabouts unknown’’ if the child ran away or the child’s whereabouts were unknown at the time that the title IV–E agency’s placement and care responsibility ends. Indicate ‘‘death of child’’ if the child died while in out-of-home care. Indicate ‘‘transfer to another agency’’ if placement and care responsibility for the child was transferred to another agency, either within or outside of the reporting state or tribal service area. (4) Transfer to another agency. If the title IV–E agency indicated the child was transferred to another agency in the data element Exit reason described in paragraph (g)(3) of this section, indicate the type of agency that received placement and care responsibility for the child from the following options: PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 ‘‘State title IV–E agency,’’ ‘‘Tribal title IV–E agency,’’ ‘‘Indian tribe or tribal agency (non-IV–E),’’ ‘‘juvenile justice agency,’’ ‘‘mental health agency,’’ ‘‘other public agency’’ or ‘‘private agency.’’ (h) Exit to adoption and guardianship information. Report information in paragraph (h) only if the title IV–E agency indicated the child exited to adoption or legal guardianship in the data element Exit reason described in paragraph (g)(3) of this section. Otherwise the title IV–E agency must leave the data elements in paragraph (h) blank. (1) Marital status of the adoptive parent(s) or guardian(s). Indicate the marital status of the adoptive parent(s) or legal guardian(s). Indicate ‘‘married couple’’ if the adoptive parents or legal guardians are considered united in matrimony according to applicable laws. Include common law marriage, where provided by applicable laws. Indicate ‘‘married but individually adopting or obtaining legal guardianship’’ if the adoptive parents or legal guardians are considered united in matrimony according to applicable laws, but are individually adopting or obtaining legal guardianship. Indicate ‘‘separated’’ if the foster parent is legally separated or is living apart from his or her spouse. Indicate ‘‘unmarried couple’’ if the adoptive parents or guardians are living together as a couple, but are not united in matrimony according to applicable laws. Use this response option even if only one person of the unmarried couple is the adoptive parent or legal guardian of the child. Indicate ‘‘single adult’’ if the adoptive parent or legal guardian is not married and is not living with another individual as part of a couple. If the response is ‘‘married couple’’ or ‘‘unmarried couple,’’ the title IV–E agency also must complete the data elements for the second adoptive parent or second legal guardian in paragraphs (h)(9) through (14) of this section; otherwise the title IV–E agency must leave these data elements blank. (2) Child’s relationship to the adoptive parent(s) or guardian(s). Indicate the type of relationship, kinship or otherwise, between the child and his or her adoptive parent(s) or legal guardian(s). Indicate whether each relationship listed in the data elements described in paragraphs (h)(2)(i) through (viii) of this section ‘‘applies’’ or ‘‘does not apply.’’ (i) Paternal grandparent(s). The adoptive parent(s) or legal guardian(s) is the child’s paternal grandparent(s), by biological, legal or marital connection. (ii) Maternal grandparent(s). The adoptive parent(s) or legal guardian(s) is E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations the child’s maternal grandparent(s), by biological, legal or marital connection. (iii) Other paternal relative(s). The adoptive parent(s) or legal guardian(s) is the child’s paternal relative (by biological, legal or marital connection) other than a grandparent, such as an aunt, uncle or cousin. (iv) Other maternal relative(s). The adoptive parent(s) or legal guardian(s) is the child’s maternal relative (by biological, legal or marital connection) other than a grandparent, such as an aunt, uncle or cousin. (v) Sibling(s). The adoptive parent or legal guardian is a brother or sister of the child, either biologically, legally or by marriage. (vi) Kin. The adoptive parent(s) or legal guardian(s) has a kin relationship with the child, as defined by the title IV–E agency, such as one where there is a psychological, cultural or emotional relationship between the child or the child’s family and the adoptive parent(s) or legal guardian(s) and there is not a legal, biological, or marital connection between the child and foster parent. (vii) Non-relative(s). The adoptive parent(s) or legal guardian(s) is not related to the child by biological, legal or marital connection. (viii) Foster parent(s). The adoptive parent(s) or legal guardian(s) was the child’s foster parent(s). (3) Date of birth of first adoptive parent or guardian. Indicate the month, day and year of the birth of the first adoptive parent or legal guardian. (4) First adoptive parent or guardian tribal membership. Indicate whether the first adoptive parent or guardian is a member of an Indian tribe. Indicate ‘‘yes,’’ ‘‘no’’ or ‘‘unknown.’’ (5) Race of first adoptive parent or guardian. In general, an individual’s race is determined by the individual. Indicate whether each race category listed in the data elements described in paragraphs (h)(5)(i) through (vii) of this section applies with a ‘‘yes’’ or ‘‘no.’’ (i) Race—American Indian or Alaska Native. An American Indian or Alaska Native individual has origins in any of the original peoples of North or South America (including Central America), and maintains tribal affiliation or community attachment. (ii) Race—Asian. An Asian individual has origins in any of the original peoples of the Far East, Southeast Asia or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand and Vietnam. (iii) Race—Black or African American. A Black or African American VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 individual has origins in any of the black racial groups of Africa. (iv) Race—Native Hawaiian or Other Pacific Islander. A Native Hawaiian or Other Pacific Islander individual has origins in any of the original peoples of Hawaii, Guam, Samoa or other Pacific Islands. (v) Race—White. A White individual has origins in any of the original peoples of Europe, the Middle East or North Africa. (vi) Race—Unknown. The first adoptive parent or legal guardian does not know his or her race, or at least one race. (vii) Race—Declined. The first adoptive parent, or legal guardian has declined to identify a race. (6) Hispanic or Latino ethnicity of first adoptive parent or guardian. In general, an individual’s ethnicity is determined by the individual. An individual is of Hispanic or Latino ethnicity if the individual is a person of Cuban, Mexican, Puerto Rican, South or Central American or other Spanish culture or origin, regardless of race. Indicate whether this category applies with a ‘‘yes’’ or ‘‘no.’’ If the first adoptive parent or legal guardian does not know his or her ethnicity, indicate ‘‘unknown.’’ If the individual refuses to identify his or her ethnicity, indicate ‘‘declined.’’ (7) Gender of first adoptive parent or guardian. Indicate whether the first adoptive parent self identifies as ‘‘female’’ or ‘‘male.’’ (8) First adoptive parent or legal guardian sexual orientation. Indicate whether the first adoptive parent or legal guardian self identifies as ‘‘straight or heterosexual,’’ ‘‘gay or lesbian,’’ ‘‘bisexual,’’ ‘‘don’t know,’’ ‘‘something else,’’ or ‘‘declined’’ if the first adoptive parent or legal guardian declined to identify his/her status. (9) Date of birth of second adoptive parent, guardian, or other member of the couple. Indicate the month, day and year of the date of birth of the second adoptive parent, legal guardian, or other member of the couple. The title IV–E agency must leave this data element blank if there is no second adoptive parent, legal guardian, or other member of the couple according to paragraph (h)(1) of this section. (10) Second adoptive parent, guardian, or other member of the couple tribal membership. Indicate whether the second adoptive parent or guardian is a member of an Indian tribe. Indicate ‘‘yes,’’ ‘‘no’’ or ‘‘unknown.’’ (11) Race of second adoptive parent, guardian, or other member of the couple. In general, an individual’s race is determined by the individual. PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 90581 Indicate whether each race category listed in the data elements described in paragraphs (h)(11)(i) through (vii) of this section applies with a ‘‘yes’’ or ‘‘no.’’ The title IV–E agency must leave this data element blank if there is no second adoptive parent, legal guardian, or other member of the couple according to paragraph (h)(1) of this section. (i) Race—American Indian or Alaska Native. An American Indian or Alaska Native individual has origins in any of the original peoples of North or South America (including Central America), and maintains tribal affiliation or community attachment. (ii) Race—Asian. An Asian individual has origins in any of the original peoples of the Far East, Southeast Asia or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand and Vietnam. (iii) Race—Black or African American. A Black or African American individual has origins in any of the black racial groups of Africa. (iv) Race—Native Hawaiian or Other Pacific Islander. A Native Hawaiian or Other Pacific Islander individual has origins in any of the original peoples of Hawaii, Guam, Samoa or other Pacific Islands. (v) Race—White. A White individual has origins in any of the original peoples of Europe, the Middle East or North Africa. (vi) Race—Unknown. The second adoptive parent, legal guardian, or other member of the couple does not know his or her race, or at least one race. (vii) Race—Declined. The second adoptive parent, legal guardian, or other member of the couple has declined to identify a race. (12) Hispanic or Latino ethnicity of second adoptive parent, guardian, or other member of the couple. In general, an individual’s ethnicity is determined by the individual. An individual is of Hispanic or Latino ethnicity if the individual is a person of Cuban, Mexican, Puerto Rican, South or Central American or other Spanish culture or origin, regardless of race. Indicate whether this category applies with a ‘‘yes’’ or ‘‘no.’’ If the second adoptive parent, legal guardian, or other member of the couple does not know his or her ethnicity, indicate ‘‘unknown.’’ If the individual refuses to identify his or her ethnicity, indicate ‘‘declined.’’ The title IV–E agency must leave this data element blank if there is no second adoptive parent, legal guardian, or other member of the couple according to paragraph (h)(1) of this section. E:\FR\FM\14DER3.SGM 14DER3 sradovich on DSK3GMQ082PROD with RULES3 90582 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations (13) Gender of second adoptive parent, guardian, or other member of the couple. Indicate whether the second adoptive parent, guardian, or other member of the couple self identifies as ‘‘female’’ or ‘‘male.’’ (14) Second adoptive parent, guardian, or other member of the couple sexual orientation. Indicate whether the second adoptive parent or legal guardian self identifies as ‘‘straight or heterosexual, ’’ ‘‘gay or lesbian,’’ ‘‘bisexual,’’ ‘‘don’t know,’’ ‘‘something else,’’ or ‘‘declined’’ if the second adoptive parent or legal guardian declined to identify his/her status. (15) Inter/Intrajurisdictional adoption or guardianship. Indicate whether the child was placed within the state or tribal service area, outside of the state or tribal service area or into another country for adoption or legal guardianship. Indicate ‘‘interjurisdictional adoption or guardianship’’ if the reporting title IV– E agency placed the child for adoption or legal guardianship outside of the state or tribal service area but within the United States. Indicate ‘‘intercountry adoption or guardianship’’ if the reporting title IV–E agency placed the child for adoption or legal guardianship outside of the United States. Indicate ‘‘intrajurisdictional adoption or guardianship’’ if the reporting title IV– E agency placed the child within the same state or tribal service area as the one with placing responsibility. If the title IV–E agency indicates either ‘‘interjurisdictional adoption or guardianship’’ or ‘‘intercountry adoption or guardianship’’ apply for the child’s adoption or legal guardianship, the title IV–E agency must complete the data element in paragraph (h)(16) of this section; otherwise the title IV–E agency must leave it blank. (16) Interjurisdictional adoption or guardianship jurisdiction. Indicate the state, tribal service area, Indian reservation or country where the reporting title IV–E agency placed the child for adoption or legal guardianship, in a format according to ACF’s specifications. The title IV–E agency must complete this data element only if the title IV–E agency indicated either ‘‘interjurisdictional adoption or guardianship’’ or ‘‘intercountry adoption or guardianship’’ in paragraph (h)(15) of this section; otherwise the title IV–E agency must leave it blank. (17) Adoption or guardianship placing agency. Indicate the agency that placed the child for adoption or legal guardianship. Indicate ‘‘title IV–E agency’’ if the reporting title IV–E agency placed the child for adoption or legal guardianship. Indicate ‘‘private VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 agency under agreement’’ if a private agency placed the child for adoption or legal guardianship through an agreement with the reporting title IV–E agency. Indicate ‘‘Indian tribe under contract/agreement’’ if an Indian tribe, tribal organization or consortia placed the child for adoption or legal guardianship through a contract or an agreement with the reporting title IV–E agency. (18) Assistance agreement type. Indicate the type of assistance agreement between the title IV–E agency and the adoptive parent(s) or legal guardian(s): ‘‘Title IV–E adoption assistance agreement;’’ ‘‘State/tribal adoption assistance agreement;’’ ‘‘Adoption-Title IV–E agreement nonrecurring expenses only;’’ ‘‘AdoptionTitle IV–E agreement Medicaid only;’’ ‘‘Title IV–E guardianship assistance agreement;’’ ‘‘State/tribal guardianship assistance agreement;’’ or ‘‘no agreement’’ if there is no assistance agreement. (19) Siblings in adoptive or guardianship home. Indicate the number of siblings of the child who are in the same adoptive or guardianship home as the child. A sibling to the child is his or her brother or sister by biological, legal, or marital connection. Do not include the child who is subject of this record in the total number. If the child does not have any siblings, the title IV–E agency must indicate ‘‘not applicable.’’ If the child has siblings, but they are not in the same adoptive or guardianship home as the child, the title IV–E agency must indicate ‘‘0.’’ (20) Available ICWA Adoptive placements. For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5), indicate which adoptive placements that meet the placement preferences in ICWA at 25 U.S.C. 1915(a) were willing to accept placement. Indicate in each paragraph (h)(20)(i) through (h)(20)(iv) of this section ‘‘yes’’ or ‘‘no.’’ (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 for foster care or pre-adoptive placements established by an Indian child’s tribe, in accordance with 25 U.S.C. 1915(c). (21) Adoption placement preferences under ICWA. For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘yes’’ to paragraph (b)(4) or indicated ‘‘yes, ICWA applies’’ to paragraph (b)(5) of this section, PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 indicate whether the adoptive placement meets the adoptive placement preferences of ICWA in 25 U.S.C. 1915(a) 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, in accordance with 25 U.S.C. 1915(c),’’ 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 (h)(22). Otherwise, leave blank. (22) Good cause under ICWA. For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘placement does not meet ICWA placement preferences’’ in paragraph (h)(21), 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 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). 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 (h)(23) of this section. If the state title IV–E agency indicated ‘‘no,’’ then the state title IV– E agency must leave paragraph (h)(23) blank. (23) Basis for good cause. For state title IV–E agencies only: If the state title IV–E agency indicated ‘‘yes’’ in paragraph (h)(22), 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 (h)(23)(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 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. E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations sradovich on DSK3GMQ082PROD with RULES3 § 1355.45 Adoption and guardianship assistance data file elements. A title IV–E agency must report the following information for each child in the adoption and guardianship assistance reporting population, if applicable based on § 1355.42(b). (a) General information—(1) Title IV– E agency. Indicate the title IV–E agency responsible for submitting the AFCARS data to ACF per requirements issued by ACF. (2) Report date. The report date corresponds to the end of the current report period. Indicate the last month and the year of the report period. (3) Child record number. The child record number is the encrypted, unique person identification number. The record number must be encrypted in accordance with ACF standards. Indicate the record number for the child. (b) Child demographics—(1) Child’s date of birth. Indicate the month, day and year of the child’s birth. (2) Child’s gender. Indicate whether the child is ‘‘male’’ or ‘‘female,’’ as appropriate. (3) Child’s race. In general, a child’s race is determined by the child or the child’s parent(s) or legal guardian(s). Indicate whether each race category listed in the data elements described in paragraphs (b)(2)(i) through (viii) of this section applies with a ‘‘yes’’ or ‘‘no.’’ (i) Race—American Indian or Alaska Native. An American Indian or Alaska Native child has origins in any of the original peoples of North or South America (including Central America), and maintains Tribal affiliation or community attachment. (ii) Race—Asian. An Asian child has origins in any of the original peoples of the Far East, Southeast Asia or the Indian subcontinent including, for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand and Vietnam. (iii) Race—Black or African American. A Black or African American child has origins in any of the black racial groups of Africa. (iv) Race—Native Hawaiian or Other Pacific Islander. A Native Hawaiian or Other Pacific Islander child has origins in any of the original peoples of Hawaii, Guam, Samoa or other Pacific Islands. (v) Race—White. A White child has origins in any of the original peoples of Europe, the Middle East or North Africa. (vi) Race—Unknown. The child or parent or legal guardian does not know the race, or at least one race of the child. (vii) Race—Abandoned. The child’s race is unknown because the child has been abandoned. Abandoned means that VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 the child was left alone or with others and the parent(s) or legal guardian(s)’ identity is unknown and cannot be ascertained. This includes a child left at a ‘‘safe haven.’’ (viii) Race—Declined. The child or parent or legal guardian has declined to identify a race. (4) Hispanic or Latino ethnicity. In general, a child’s ethnicity is determined by the child or the child’s parent(s) or legal guardian(s). A child is of Hispanic or Latino ethnicity if the child is a person of Cuban, Mexican, Puerto Rican, South or Central American or other Spanish culture or origin, regardless of race. Indicate whether this category applies with a ‘‘yes’’ or ‘‘no.’’ If the child or the child’s parent or legal guardian does not know or cannot communicate whether the child is of Hispanic or Latino ethnicity, indicate ‘‘unknown.’’ If the child was abandoned indicate ‘‘abandoned.’’ Abandoned means that the child was left alone or with others and the parent(s) or legal guardian(s)’ identity is unknown and cannot be ascertained. This includes a child left at a ‘‘safe haven.’’ If the child or the child’s parent(s) or legal guardian(s) refuses to identify the child’s ethnicity, indicate ‘‘declined.’’ (c) Adoption and guardianship assistance agreement information—(1) Assistance agreement type. Indicate whether the child is or was in a finalized adoption with a title IV–E adoption assistance agreement or in a legal guardianship with a title IV–E guardianship assistance agreement, pursuant to sections 473(a) and 473(d) of the Act, in effect during the report period. Indicate ‘‘title IV–E adoption assistance agreement’’ or ‘‘title IV–E guardianship assistance agreement,’’ as appropriate. (2) Adoption or guardianship subsidy amount. Indicate the per diem dollar amount of the financial subsidy paid to the adoptive parent(s) or legal guardian(s) on behalf of the child during the last month of the current report period, if any. The title IV–E agency must indicate ‘‘0’’ if a financial subsidy was not paid during the last month of the report period. (d) Adoption finalization or guardianship legalization date. Indicate the month, day and year that the child’s adoption was finalized or the guardianship became legalized. (e) Agreement termination date. If the title IV–E agency terminated the adoption assistance or guardianship assistance agreement or the agreement expired during the report period, indicate the month, day and year that PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 90583 the agreement terminated or expired; otherwise leave this data element blank. § 1355.46 Compliance. (a) Files subject to compliance. ACF will evaluate the out-of-home care and adoption and guardianship assistance data files that a title IV–E agency submits to determine whether the data complies with the requirements of § 1355.43 and the data file submission and data quality standards described in paragraphs (c) and (d) of this section. ACF will exempt records related to a child in either data file whose 18th birthday occurred in a prior report period and will exempt records relating to a child in the adoption and guardianship assistance data file who is in a title IV–E guardianship from a compliance determination as described in paragraph (e) of this section. (b) Errors. ACF will utilize the error definitions in paragraphs (b)(1) through (5) of this section to assess a title IV–E agency’s out-of-home care and adoption and guardianship assistance data files. This assessment of errors will help ACF to determine if the title IV–E agency’s submitted data files meet the data file submission and data quality standards outlined in paragraphs (c) and (d) of this section. ACF will develop and issue error specifications. (1) Missing data. Missing data refers to instances in which a data element has a blank or otherwise missing response, when such a response is not a valid option as described in §§ 1355.44 or 1355.45. (2) Invalid data. Invalid data refers to instances in which a data element contains a value that is outside the parameters of acceptable responses or exceeds, either positively or negatively, the acceptable range of response options as described in §§ 1355.44 or 1355.45. (3) Internally inconsistent data. Internally inconsistent data refers to instances in which a data element fails an internal consistency check designed to validate the logical relationship between data elements within each record. This assessment will identify all data elements involved in a particular check as in error. (4) Cross-file errors. A cross-file error occurs when a cross-file check determines that a response option for a data element recurs across the records in either the out-of-home care data file or adoption and guardianship assistance data file beyond a specified acceptable threshold as specified per ACF. (5) Tardy transactions. Tardy transactions are instances in which the removal transaction date or exit transaction date described in § 1355.44(d)(2) and (g)(2) respectively, E:\FR\FM\14DER3.SGM 14DER3 90584 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations are entered into the title IV–E agency’s information system more than 30 days after the event. (c) Data file standards. To be in compliance with the AFCARS requirements, the title IV–E agency must submit a data file in accordance with the data file standards described in paragraphs (c)(1) through (3) of this section. (1) Timely submission. ACF must receive the data files on or before the reporting deadline described in § 1355.43(a). (2) Proper format. The data files must meet the technical standards issued by ACF for data file construction and transmission. In addition, each record subject to compliance standards within the data file must have the data elements described in §§ 1355.44(a)(1) through (4), 1355.44(b)(1) and (b)(2)(i), 1355.45(a), and 1355.45(b)(1) and (2) be 100 percent free of missing data, invalid data and internally inconsistent data (see paragraphs (b)(1) through (3) of this section). ACF will not process a title IV– E agency’s data file that does not meet the proper format standard. (d) Data quality standards. (1) To be in compliance with the AFCARS requirements, the title IV–E agency must submit a data file that has no more than 10 percent total of missing, invalid, or internally inconsistent data, or tardy transactions for each data element of applicable records. These standards are in addition to the formatting standards described in paragraph (c)(2) of this section. (2) Acceptable cross-file. The data files must be free of cross-file errors that exceed the acceptable thresholds, as defined by ACF. (e) Compliance determination and corrected data. (1) ACF will first determine whether the title IV–E agency’s out-of-home care data file and adoption and guardianship assistance data file meets the data file standards in paragraph (c) of this section. Compliance is determined separately for each data file. (2) If each data file meets the data file standards, ACF will then determine whether each data file meets the data quality standards in paragraph (d) of this section. For every data element, we will divide the total number of applicable records in error (numerator) by the total number of applicable records (denominator), to determine whether the title IV–E agency has met the applicable data quality standards. (3) In general, a title IV–E agency that has not met either the data file formatting standards or data quality standards must submit a corrected data file(s) no later than when data is due for the subsequent six month report period (i.e., by May 15 and November 14), as applicable. ACF will determine that the corrected data file(s) is in compliance if it meets the data file and data standards in paragraphs (c) and (d) of this section. Exception: If ACF determines initially that the title IV–E agency’s data file has not met the data quality standard related to tardy transactions, ACF will determine compliance with regard to the transaction dates only in the out-ofhome care data file submitted for the subsequent report period. (f) Noncompliance. If the title IV–E agency does not submit a corrected data file, or submits a corrected data file that fails to meet the compliance standards in paragraphs (c) and (d) of this section, ACF will notify the title IV–E agency of such and apply penalties as provided in § 1355.47. (g) Other assessments. ACF may use other monitoring tools or assessment procedures to determine whether the title IV–E agency is meeting all of the requirements of §§ 1355.41 through 1355.45. § 1355.47 Penalties. (a) Federal funds subject to a penalty. The funds that are subject to a penalty are the title IV–E agency’s claims for title IV–E foster care administration and training for the quarter in which the title IV–E agency is required to submit the data files. For data files due on May 15, ACF will assess the penalty based on the title IV–E agency’s claims for the third quarter of the Federal fiscal year. For data files due on November 14, ACF will assess the penalty based on the title IV–E agency’s claims for the first quarter of the Federal fiscal year. (b) Penalty amounts. ACF will assess penalties in the following amounts: (1) First six month period. ACF will assess a penalty in the amount of one sixth of one percent (1⁄6 of 1%) of the funds described in paragraph (a) of this section for the first six month period in which the title IV–E agency’s submitted corrected data file does not comply with § 1355.46. (2) Subsequent six month periods. ACF will assess a penalty in the amount of one fourth of one percent (1⁄4 of 1%) of the funds described in paragraph (a) of this section for each subsequent six month period in which the title IV–E agency continues to be out of compliance. (c) Penalty reduction from grant. ACF will offset the title IV–E agency’s title IV–E foster care grant award in the amount of the penalty from the title IV– E agency’s claims following the title IV– E agency notification of ACF’s final determination of noncompliance. (d) Appeals. The title IV–E agency may appeal ACF’s final determination of noncompliance to the HHS Departmental Appeals Board pursuant to 45 CFR part 16. Appendices A through E to Part 1355 [Removed] 5. Effective October 1, 2019, remove Appendices A through E to Part 1355. ■ Note: The following attachments will not appear in the Code of Federal Regulations. ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44 Category Element Reponses options General information ............................. Title IV–E agency ................................ Report date .......................................... Local agency ....................................... Child record number ............................ Child’s date of birth ............................. Child’s gender ..................................... Name ................................................... Date ..................................................... Name ................................................... Number ................................................ Date ..................................................... Male ..................................................... Female. ................................................ Straight or heterosexual ...................... Gay or lesbian Bisexual Don’t know Something else Decline Not applicable sradovich on DSK3GMQ082PROD with RULES3 Child information .................................. Child’s sexual orientation .................... VerDate Sep<11>2014 20:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Section citation 1355.44(a)(1). 1355.44(a)(2). 1355.44(a)(3). 1355.44(a)(4). 1355.44(b)(1). 1355.44(b)(2)(i). 1355.44(b)(2)(ii). Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations 90585 ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options Reason to know a child is an ‘‘Indian child’’ as defined in the Indian Child Welfare Act. Inquired with the child’s biological or adoptive mother. .............................................................. 1355.44(b)(3). Yes ...................................................... No The biological or adoptive mother is deceased Yes ...................................................... No The biological or adoptive father is deceased Yes ...................................................... No Child does not have an Indian custodian Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Unknown Yes ...................................................... No Unknown 1355.44(b)(3)(i). Yes ...................................................... No Date ..................................................... 1355.44(b)(4). 1355.44(b)(4)(i). Name(s) ............................................... 1355.44(b)(4)(ii). Yes, ICWA applies .............................. No, ICWA does not apply No court determination Date ..................................................... 1355.44(b)(5). 1355.44(b)(5)(i). Name ................................................... 1355.44(b)(5)(ii). .............................................................. Yes ...................................................... No 1355.44(b)(6). 1355.44(b)(6)(i). Yes ...................................................... No 1355.44(b)(6)(ii). Name(s) ............................................... 1355.44(b)(6)(iii). Yes ...................................................... No Yes ...................................................... No Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply 1355.44(b)(7). .............................................................. Yes ...................................................... No 1355.44(b)(9). 1355.44(b)(9)(i). Inquired with the child’s biological or adoptive father. Inquired with the child’s Indian custodian. Inquired with the child’s extended family. Inquired with the child ......................... Child is a member or eligible for membership in an Indian tribe. 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. Application of ICWA ............................ The date that the state title IV–E agency first discovered information indicating the child is or may be an Indian child as defined in ICWA. All federally recognized Indian tribe(s) that may potentially be the Indian child’s tribe(s). Court determination that ICWA applies Date court determined that ICWA applies. Indian tribe that the court determined is the Indian child’s tribe for ICWA purposes. Notification ........................................... Whether the Indian child’s parent or Indian custodian was sent legal notice more than 10 days prior to the first child custody proceeding in accordance with 25 U.S.C. 1912(a). Whether the Indian child’s tribe(s) was sent legal notice more than 10 days prior to the first child custody proceedings in accordance with 25 U.S.C. 1912(a). The Indian tribe(s) that were sent notice for a child custody proceeding as required in ICWA at 25 U.S.C. 1912(a). Request to transfer to tribal court ....... sradovich on DSK3GMQ082PROD with RULES3 Denial of transfer ................................. Either of the parents objected to transferring the case to tribal court. The tribal court declined the transfer to the tribal court. The state court determined good cause exists for denying the transfer to tribal court. Child’s race .......................................... Race—American Indian or Alaska Native. VerDate Sep<11>2014 20:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Section citation 1355.44(b)(3)(ii). 1355.44(b)(3)(iii). 1355.44(b)(3)(iv). 1355.44(b)(3)(v). 1355.44(b)(3)(vi). 1355.44(b)(3)(vii). 1355.44(b)(8). 1355.44(b)(8)(i). 1355.44(b)(8)(ii). 1355.44(b)(8)(iii). 90586 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options Race—Asian ........................................ Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Unknown Abandoned Declined Yes ...................................................... No Date ..................................................... Yes ...................................................... No Child has a diagnosed condition ......... No exam or assessment conducted Exam or assessment conducted and none of the conditions apply Exam or assessment conducted but results not received Existing condition ................................ Previous condition Does not apply Existing condition ................................ Previous condition Does not apply Existing condition ................................ Previous condition Does not apply Existing condition ................................ Previous condition Does not apply Existing condition ................................ Previous condition Does not apply Existing condition ................................ Previous condition Does not apply Existing condition ................................ Previous condition Does not apply Existing condition ................................ Previous condition Does not apply Existing condition ................................ Previous condition Does not apply Existing condition ................................ Previous condition Does not apply Existing condition ................................ Previous condition Does not apply Elementary .......................................... Secondary Post-secondary education or training College Not school-age Not enrolled Not school-age .................................... Kindergarten 1st grade Race—Black or African America ......... Race—Native Hawaiian or Other Pacific Islander. Race—White ....................................... Race—Unknown .................................. Race—Abandoned .............................. Race—Declined ................................... Child’s Hispanic or Latino ethnicity ..... Health assessment .............................. Date of health assessment ................. Timely health assessment ................... Health, behavioral or mental health conditions. Intellectual disability ............................ Autism spectrum disorder ................... Visual impairment and blindness ........ Hearing impairment and deafness ...... Orthopedic impairment or other physical condition. Mental/emotional disorders ................. Attention deficit hyperactivity disorder Serious mental disorders .................... Developmental delay ........................... Developmental disability ...................... sradovich on DSK3GMQ082PROD with RULES3 Other diagnosed condition .................. School enrollment ................................ Educational level ................................. VerDate Sep<11>2014 20:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Section citation 1355.44(b)(9)(ii). 1355.44(b)(9)(iii). 1355.44(b)(9)(iv). 1355.44(b)(9)(v). 1355.44(b)(9)(vi). 1355.44(b)(9)(vii). 1355.44(b)(9)(viii). 1355.44(b)(10). 1355.44(b)(11)(i). 1355.44(b)(11)(ii). 1355.44(b)(12). 1355.44(b)(13). 1355.44(b)(13)(i). 1355.44(b)(13)(ii). 1355.44(b)(13)(iii). 1355.44(b)(13)(iv). 1355.44(b)(13)(v). 1355.44(b)(13)(vi). 1355.44(b)(13)(vii). 1355.44(b)(13)(viii). 1355.44(b)(13)(ix). 1355.44(b)(13)(x). 1355.44(b)(13)(xi). 1355.44(b)(14). 1355.44(b)(15). Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations 90587 ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options Educational stability ............................. Proximity .............................................. District/zoning rules ............................. Residential facility ................................ Services/programs ............................... Child request ....................................... Parent/Legal guardian request ............ Other .................................................... Pregnant or parenting ......................... Child is pregnant as of end of report period. Child has ever fathered or bore a child. Child and his/her child(re) are placed together at any point during the report period. Special education ................................ Prior adoption ...................................... Prior adoption date .............................. Prior adoption intercountry .................. Prior guardianship ............................... Prior guardianship date ....................... Child financial and medical assistance SSI or Social Security benefits ........... Title XIX Medicaid ............................... Title XXI SCHIP ................................... State/Tribal adoption assistance ......... State/Tribal foster care ........................ sradovich on DSK3GMQ082PROD with RULES3 Child support ....................................... Title IV–E adoption subsidy ................ Title IV–E guardianship assistance ..... Title IV–A TANF .................................. Title IV–B ............................................. SSBG ................................................... VerDate Sep<11>2014 20:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00065 Fmt 4701 2nd grade 3rd grade 4th grade 5th grade 6th grade 7th grade 8th grade 9th grade 10th grade 11th grade 12th grade GED Post-secondary education or training College Yes ...................................................... No Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply .............................................................. Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Not applicable Yes ...................................................... No Yes ...................................................... No abandoned Date ..................................................... Yes ...................................................... No Yes ...................................................... No Abandoned Date ..................................................... Child has received support/assistance No support/assistance received Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Section citation 1355.44(b)(16). 1355.44(b)(16)(i). 1355.44(b)(16)(ii). 1355.44(b)(16)(iii). 1355.44(b)(16)(iv). 1355.44(b)(16)(v). 1355.44(b)(16)(vi). 1355.44(b)(16)(vii). 1355.44(b)(17). 1355.44(b)(17)(i). 1355.44(b)(17)(ii). 1355.44(b)(17)(iii). 1355.44(b)(18). 1355.44(b)(19). 1355.44(b)(19)(i). 1355.44(b)(19)(ii). 1355.44(b)(20)(i). 1355.44(b)(20)(ii). 1355.44(b)(21). 1355.44(b)(21)(i). 1355.44(b)(21)(ii). 1355.44(b)(21)(iii). 1355.44(b)(21)(iv). 1355.44(b)(21)(v). 1355.44(b)(21)(vi). 1355.44(b)(21)(vii). 1355.44(b)(21)(viii). 1355.44(b)(21)(ix). 1355.44(b)(21)(x). 1355.44(b)(21)(xi). 90588 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options Chafee Foster Care Independence Program. Other .................................................... Parent or legal guardian information ... Title IV–E foster care during report period. Total number of siblings ...................... Siblings in foster care .......................... Siblings in living arrangement ............. Year of birth of first parent or legal guardian. Year of birth of second parent or legal guardian. Tribal membership mother .................. Tribal membership father .................... Termination/modification of parental rights. sradovich on DSK3GMQ082PROD with RULES3 Removal information ............................ VerDate Sep<11>2014 18:08 Dec 13, 2016 Termination/modification of parental rights petition. Termination/modification of parental rights. Involuntary termination/modification of parental rights under ICWA. State court found beyond 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). Court decision to involuntary terminate parental rights included the testimony of one or more qualified expert witnesses in accordance with 25 U.S.C. 1912(f). 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). Voluntary termination/modification of parental rights under ICWA. Date of child’s removal ........................ Removal transaction date ................... Removals under ICWA ........................ 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 121(a). Evidence presented for foster care placement as indicated in paragraph (d)(3)(i) included the testimony of a qualified expert witness in accordance with 25 U.S.C. 1912(e) and 25 CFR 121(a). Jkt 241001 PO 00000 Frm 00066 Fmt 4701 Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Yes ...................................................... No Number ................................................ Number ................................................ Number ................................................ Date ..................................................... Section citation 1355.44(b)(xii). 1355.44(b)(xiii). 1355.44(b)(22). 1355.44(b)(23). 1355.44(b)(24). 1355.44(b)(25). 1355.44(c)(1). Date ..................................................... 1355.44(c)(2). Yes ...................................................... No Unknown Yes ...................................................... No Unknown Voluntary ............................................. Involuntary Not applicable Date ..................................................... 1355.44(c)(3). 1355.44(c)(5)(i). Date ..................................................... 1355.44(c)(5)(ii). .............................................................. 1355.44(c)(6). Yes ...................................................... No 1355.44(c)(6)(i). Yes ...................................................... No 1355.44(c)(6)(ii). Yes ...................................................... No 1355.44(c)(6)(iii). Yes ...................................................... No Date ..................................................... Date ..................................................... .............................................................. Yes ...................................................... No 1355.44(c)(7). Yes ...................................................... No Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 1355.44(c)(4). 1355.44(c)(5). 1355.44(d)(1). 1355.44(d)(2). 1355.44(d)(3). 1355.44(d)(3)(i). 1355.44(d)(3)(ii). Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations 90589 ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options Evidence presented for foster care placement as indicated in paragraph (d)(3)(i) indicates that prior to each removal reported in paragraph (d)(1) 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). Environment at removal ...................... Yes ...................................................... No 1355.44(d)(3)(iii). Parent household ................................ Relative household Legal guardian household Relative legal guardian household Justice facility Medical/mental health facility Other Court ordered ...................................... Voluntary placement agreement Not yet determined .............................................................. 1355.44(d)(4). Authority for placement and care responsibility. Child and family circumstances at removal. Runaway .............................................. Whereabouts unknown ........................ Physical abuse .................................... Sexual abuse ....................................... Psychological or emotional abuse ...... Neglect ................................................ Medical neglect ................................... Domestic violence ............................... Abandonment ...................................... Failure to return ................................... Caretaker’s alcohol use ....................... Caretaker’s drug use ........................... Child alcohol use ................................. Child drug use ..................................... Prenatal alcohol exposure ................... Prenatal drug exposure ....................... Diagnosed condition ............................ Inadequate access to mental health services. Inadequate access to medical services. Child behavior problem ....................... sradovich on DSK3GMQ082PROD with RULES3 Death of caretaker ............................... Incarceration of caretaker ................... Caretaker’s significant impairment— physical/emotional. Caretaker’s significant impairment— cognitive. Inadequate housing ............................. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00067 Fmt 4701 Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Section citation 1355.44(d)(5). 1355.44(d)(6). 1355.44(d)(6)(i). 1355.44(d)(6)(ii). 1355.44(d)(6)(iii). 1355.44(d)(6)(iv). 1355.44(d)(6)(v). 1355.44(d)(6)(vi) 1355.44(d)(6)(vii). 1355.44(d)(6)(viii). 1355.44(d)(6)(ix). 1355.44(d)(6)(x). 1355.44(d)(6)(xi). 1355.44(d)(6)(xii). 1355.44(d)(6)(xiii). 1355.44(d)(6)(xiv). 1355.44(d)(6)(xv). 1355.44(d)(6)(xvi). 1355.44(d)(6)(xvii). 1355.44(d)(6)(xviii). 1355.44(d)(6)(xix). 1355.44(d)(6)(xx). 1355.44(d)(6)(xxi). 1355.44(d)(6)(xxii). 1355.44(d)(6)(xxiii). 1355.44(d)(6)(xxiv). 1355.44(d)(6)(xxv). 90590 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options Voluntary relinquishment for adoption Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Child requested placement ................. Sex trafficking ...................................... Parental immigration detainment or deportation. Family conflict related to child’s sexual orientation, gender identity, or gender expression. Educational neglect ............................. Public agency title IV–E agreement .... Tribal title IV–E agreement ................. Homelessness ..................................... Victim of sex trafficking prior to entering foster care. Report to law enforcement .................. Date ..................................................... Victim of sex trafficking while in foster care. Report to law enforcement .................. Living arrangement and provider information. Date ..................................................... Date of living arrangement Foster family home .............................. Foster family home type ...................... Licensed home .................................... Therapeutic foster family home ........... Shelter care foster family home .......... Relative foster family home ................. Pre-adoptive home .............................. Kin foster family home ........................ Other living arrangement type ............. Private agency living arrangement ...... sradovich on DSK3GMQ082PROD with RULES3 Location of living arrangement ............ Jurisdiction or country where child is living. Available ICWA foster care and preadoptive placement preferences. A member of the Indian’s extended family. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00068 Fmt 4701 Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Yes ...................................................... No Yes ...................................................... No Date ..................................................... Yes ...................................................... No Yes ...................................................... No Date ..................................................... Date Yes ...................................................... No .............................................................. Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Group home-family operated .............. Group home-staff operated Group home-shelter care Residential treatment center Child care institution Child care institution-shelter care Supervised independent living Juvenile justice facility Medical or rehabilitative facility Psychiatric hospital Runaway Whereabouts unknown Placed at home Private agency involvement ................ No private agency involvement Out-of-state or out-of-tribal service area In-state or in-tribal service area Out-of-country Runaway or whereabouts Unknown Name ................................................... Section citation 1355.44(d)(6)(xxvi). 1355.44(d)(6)(xxvii). 1355.44(d)(6)(xxviii). 1355.44(d)(6)(xxix). 1355.44(d)(6)(xxx). 1355.44(d)(6)(xxxi). 1355.44(d)(6)(xxxii). 1355.44(d)(6)(xxxiii). 1355.44(d)(6)(xxxiv). 1355.44(d)(7). 1355.44(d)(7)(i). 1355.44(d)(7)(ii) 1355.44(d)(8). 1355.44(d)(8)(i). 1355.44(d)(8)(ii) 1355.44(e)(1) 1355.44(e)(2) 1355.44(e)(3) 1355.44(e)(3)(i). 1355.44(e)(3)(ii). 1355.44(e)(3)(iii). 1355.44(e)(3)(iv). 1355.44(e)(3)(v). 1355.44(e)(3)(vi). 1355.44(e)(4). 1355.44(e)(5) 1355.44(e)(6). 1355.44(e)(7). .............................................................. 1355.44(e)(8). Yes ...................................................... No 1355.44(e)(8)(i). Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations 90591 ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options 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, in accordance with 25 U.S.C. 1915(c). Foster care and pre-adoptive placements preferences under ICWA. Yes ...................................................... No Yes ...................................................... No 1355.44(e)(8)(ii). Yes ...................................................... No 1355.44(e)(8)(iv). Yes ...................................................... No 1355.44(e)(8)(v). 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, in accordance with 25 U.S.C. 1915(c) Placement does not meet ICWA placement preferences Yes ...................................................... No .............................................................. Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No 1355.44(e)(9). Yes ...................................................... No 1355.44(e)(11)(iv). Yes ...................................................... No 1355.44(e)(11)(v). Married couple ..................................... Unmarried couple Separated Single adult Paternal grandparent(s) Maternal grandparent(s) ...................... Other paternal relative(s) Other maternal relative(s) Sibling(s) Non-relative(s) Kin Date ..................................................... 1355.44(e)(12). Good cause under ICWA .................... Basis for good cause .......................... Request of one or both of the Indian child’s parents. Request of the Indian child ................. sradovich on DSK3GMQ082PROD with RULES3 Unavailability of suitable placement after a determination by the court that a diligent search was conducted to find suitable placements meeting the placement preferences in ICWA art 25 U.S.C. 1915 but none has been located. 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. Presence of a sibling attachment that can be maintained only through a particular placement. Marital status of the foster parents ..... Child’s relationships to the foster parents. Year of birth for first foster parent ....... VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Section citation 1355.44(e)(8)(iii). 1355.44(e)(10). 1355.44(e)(11) 1355.44(e)(11)(i). 1355.44(e)(11)(ii). 1355.44(e)(11)(iii). 1355.44(e)(13). 1355.44(e)(14). 90592 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options First foster parent tribal membership .. Yes ...................................................... No Unknown .............................................................. Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Unknown Declined Female ................................................. Male Straight or heterosexual ...................... Gay or lesbian Bisexual Don’t know Something else Declined Date ..................................................... Yes ...................................................... No Unknown .............................................................. Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Unknown Declined Female ................................................. Male Straight or heterosexual ...................... Gay or lesbian Bisexual Don’t know Something else Declined Reunify with parent(s) or legal guardian(s) Live with other relatives Adoption Guardianship Planned permanent living arrangement Permanency plan not established Date ..................................................... Date ..................................................... Date ..................................................... Race of first foster parent ................... Race—American Indian or Alaska Native. Race—Asian ........................................ Race—Black or African America ......... Race—Native Hawaiian or Other Pacific Islander. Race—White ....................................... Race—Unknown .................................. Race—Declined ................................... Hispanic or Latino ethnicity of first foster parent. Gender of first foster parent ................ First foster parent sexual orientation .. Year of birth for second foster parent Second foster parent tribal membership. Race of second foster parent .............. Race—American Indian or Alaska Native. Race—Asian ........................................ Race—Black or African America ......... Race—Native Hawaiian or Other Pacific Islander. Race—White ....................................... Race—Unknown .................................. Race—Declined ................................... Hispanic or Latino ethnicity of second foster parent. Gender of second foster parent .......... Second foster parent sexual orientation. sradovich on DSK3GMQ082PROD with RULES3 Permanency planning .......................... Permanency plan ................................ Date of permanency plan .................... Date of periodic review ....................... Date of permanency hearing ............... VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Section citation 1355.44(e)(15). 1355.44(e)(16). 1355.44(e)(16)(i). 1355.44(e)(16)(ii). 1355.44(e)(16)(iii). 1355.44(e)(16)(iv) 1355.44(e)(16)(v). 1355.44(e)(16)(vi). 1355.44(e)(16)(vii). 1355.44(e)(17). 1355.44(e)(18). 1355.44(e)(19). 1355.44(e)(20). 1355.44(e)(21). 1355.44(e)(22). 1355.44(e)(22)(i). 1355.44(e)(22)(ii). 1355.44(e)(22)(iii). 1355.44(e)(22)(iv). 1355.44(e)(22)(v) 1355.44(e)(22)(vi). 1355.44(e)(22)(vii). 1355.44(e)(23). 1355.44(e)(24). 1355.44(e)(25). 1355.44(f)(1) 1355.44(f)(2). 1355.44(f)(3). 1355.44(f)(4). Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations 90593 ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options Juvenile justice .................................... Yes ...................................................... No Date ..................................................... Child’s residence ................................. Other location Yes ...................................................... No Not applicable Date ..................................................... .............................................................. Applies ................................................. Does not apply 1355.44(f)(5) Applies ................................................. Does not apply 1355.44(f)(10)(ii). Applies ................................................. Does not apply 1355.44(f)(10)(iii). Applies ................................................. Does not apply 1355.44(f)(10)(iv). Applies ................................................. Does not apply 1355.44(f)(10)(v). Applies ................................................. Does not apply 1355.44(f)(10)(vi). Applies ................................................. Does not apply Applies ................................................. Does not apply 1355.44(f)(10)(vii). Applies ................................................. Does not apply 1355.44(f)(10)(ix). Applies ................................................. Does not apply Applies ................................................. Does not apply 1355.44(f)(10)(x). Applies ................................................. Does not apply 1355.44(f)(10)(xii). Caseworker visit dates ........................ Caseworker visit location .................... sradovich on DSK3GMQ082PROD with RULES3 Transition plan ..................................... Date of transition plan ......................... Active efforts ........................................ Assist the parent(s) or Indian custodian through the steps of a case plan and with developing the resources necessary to satisfy the case plan. Conduct a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal. Identify appropriate services and to help the parent overcome barriers, including actively assisting the parents in obtaining such services. Identify, notify and invite representatives of the Indian child’s tribe to participate in providing support and services to the Indian child’s family and in family team meetings, permanency planning and resolution of placement issues. Conduct or cause to be conducted a diligent search for the Indian child’s expended family members, and contacting and consulting with extended family members to provide family structure and support for the Indian child and the Indian child’s parents. Offer and employ all available and culturally appropriate family preservation strategies and facilitate the use of remedial and rehabilitative services provide by the child’s tribe. Take steps to keep siblings together whenever possible. Support regular visits with parents or Indian custodians in the most natural setting possible as well as trial home visits of the Indian child during any period of removal, consistent with the need to ensure the health, safety, and welfare of the child. Identify community resources including housing, financial, transportation, mental health, substance use and peer support services and actively assisting the Indian child’s parents or when appropriate, the child’s family in utilizing and accessing those resources. Monitor progress and participation in services. Consider alternative ways to address the needs of the Indian child’s parents and, where appropriate, the family, if the optimum services do not exist or are not available. Provide post-reunification services and monitoring. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Section citation 1355.44(f)(6). 1355.44(f)(7). 1355.44(f)(8). 1355.44(f)(9). 1355.44(f)(10) 1355.44(f)(10)(i). 1355.44(f)(10)(viii). 1355.44(f)(10)(xi). 90594 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options General exit information ...................... Other active efforts tailored to the facts and circumstances of the case. Date of exit .......................................... Exit transaction date ............................ Exit reason .......................................... Applies ................................................. Does not apply Date ..................................................... Date ..................................................... Not applicable ...................................... Reunify with parent(s)/legal guardian(s) Live with other relatives Adoption Emancipation Guardianship Runaway or whereabouts unknown Death of child Transfer to another agency State title IV–E agency ........................ Tribal title IV–E agency Indian tribe or tribal agency (non IV– E) Juvenile justice agency Mental health agency Other public agency Private agency Married couple ..................................... Married but individually adopting or obtaining legal guardianship Separated Unmarried couple Single adult .............................................................. Transfer to another agency ................. Exit to adoption and guardianship information. Marital status of adoptive parent(s) or guardian(s). Child’s relationship to the adoptive parent(s) or guardian(s). Paternal grandparent(s) ...................... Maternal grandparent(s) ...................... Other paternal relative(s) .................... Other maternal relative(s) ................... Sibling(s) .............................................. Kin ....................................................... Non-relative(s) ..................................... Foster parent(s) ................................... Date of birth of first adoptive parent or guardian. First adoptive parent or guardian tribal membership. Race of first adoptive parent or guardian. Race—American Indian or Alaska Native. Race—Asian ........................................ Race—Black or African America ......... sradovich on DSK3GMQ082PROD with RULES3 Race—Native Hawaiian or Other Pacific Islander. Race—White ....................................... Race—Unknown .................................. Race—Declined ................................... Hispanic or Latino ethnicity of first adoptive parent or guardian. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00072 Fmt 4701 Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Applies ................................................. Does not apply Date ..................................................... Yes ...................................................... No Unknown .............................................................. Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Unknown Declined Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Section citation 1355.44(f)(10)(xiii). 1355.44(g)(1). 1355.44(g)(2). 1355.44(g)(3) 1355.44(g)(4) 1355.44(h)(1). 1355.44(h)(2) 1355.44(h)(2)(i). 1355.44(h)(2)(ii). 1355.44(h)(2)(iii). 1355.44(h)(2)(iv). 1355.44(h)(2)(v). 1355.44(h)(2)(vi). 1355.44(h)(2)(vii). 1355.44(h)(2)(viii). 1355.44(h)(3). 1355.44(h)(4). 1355.44(h)(5) 1355.44(h)(5)(i). 1355.44(h)(5)(ii). 1355.44(h)(5)(iii). 1355.44(h)(5)(iv). 1355.44(h)(5)(v). 1355.44(h)(5)(vi). 1355.44(h)(5)(vii). 1355.44(h)(6). Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations 90595 ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options Gender of first adoptive parent or guardian. First adoptive parent or legal guardian sexual orientation. Female ................................................. Male Straight or Heterosexual ..................... Gay or lesbian Bisexual Don’t know Something else Declined Date ..................................................... Date of birth of second adoptive parent, guardian or other member of the couple. Second adoptive parent, guardian, or other member of the couple tribal membership. Race of second adoptive parent, guardian, or other member of the couple. Race—American Indian or Alaska Native. Race—Asian ........................................ Race—Black or African America ......... Race—Native Hawaiian or Other Pacific Islander. Race—White ....................................... Race—Unknown .................................. Race—Declined ................................... Hispanic or Latino ethnicity of second adoptive parent, guardian, or other member of the couple. Gender of second adoptive parent, guardian, or other member of the couple. Second adoptive parent, guardian, or other member of the couple sexual orientation. Inter/Intrajurisdictional guardianship. adoption or Interjurisdictional adoption or guardianship jurisdiction. Adoption or guardianship placing agency. sradovich on DSK3GMQ082PROD with RULES3 Assistance agreement type ................. Siblings in adoptive or guardianship home. Available ICWA adoptive placements A member of the Indian child’s extended family. VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00073 Fmt 4701 Yes ...................................................... No Unknown .............................................................. Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No Unknown Declined Female ................................................. Male Straight or heterosexual ...................... Gay or lesbian Bisexual Don’t know Something else Declined Interjurisdictional adoption or guardianship Intercountry adoption or guardianship Intrajurisdictional adoption or guardianship Name ................................................... Title IV–E agency ................................ Private agency under agreement Indian tribe under contract/agreement Title IV–E adoption assistance agreement State/tribal adoption assistance agreement Adoption—Title IV–E agreement nonrecurring expenses only Adoption—Title IV–E agreement Medicaid only Title IV–E guardianship assistance agreement State/tribal guardianship assistance agreement No agreement Number ................................................ .............................................................. Yes ...................................................... No Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Section citation 1355.44(h)(7). 1355.44(h)(8). 1355.44(h)(9) 1355.44(h)(10). 1355.44(h)(11). 1355.44(h)(11)(i). 1355.44(h)(11)(ii). 1355.44(h)(11)(iii). 1355.44(h)(11)(iv). 1355.44(h)(11)(v). 1355.44(h)(11)(vi). 1355.44(h)(11)(vii). 1355.44(h)(12). 1355.44(h)(13). 1355.44(h)(14). 1355.44(h)(15). 1355.44(h)(16). 1355.44(h)(17). 1355.44(h)(18). 1355.44(h)(19). 1355.44(h)(20). 1355.44(h)(20)(i). 90596 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations ATTACHMENT A—OUT-OF-HOME CARE DATA FILE ELEMENTS § 1355.44—Continued Category Element Reponses options Other members of the Indian child’s tribe. Other Indian families ........................... Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No. A placement that complies with the order of preference for foster care or pre-adoptive placements established by an Indian child’s tribe, in accordance with 25 U.S.C. 1915(c). Adoption placement preferences under ICWA. Good cause under ICWA .................... Basis for good cause .......................... Request of one or both of the child’s parents. Request of the Indian child ................. 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. 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. The presence of a sibling attachment that can be maintained only through a particular placement. Section citation 1355.44(h)(20)(ii). 1355.44(h)(20)(iii). 1355.44(h)(20)(iv). 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, in accordance with 25 U.S.C. 1915(c) Placement does not meet ICWA placement preferences Yes ...................................................... No .............................................................. Yes ...................................................... No Yes ...................................................... No Yes ...................................................... No 1355.44(h)(21). Yes ...................................................... No 1355.44(h)(23)(iv). Yes ...................................................... No 1355.44(h)(23)(v). 1355.44(h)(22). 1355.44(h)(23) 1355.44(h)(23)(i) 1355.44(h)(23)(ii). 1355.44(h)(23)(iii). ATTACHMENT B—ADOPTION ASSISTANCE DATA FILE ELEMENTS § 1355.45 Element Reponses options Title IV–E agency .................................................................. Report date ........................................................................... Child record number ............................................................. Child’s date of birth ............................................................... Child’s gender ....................................................................... Name .................................................................................... Date ...................................................................................... Number ................................................................................. Date ...................................................................................... Male ...................................................................................... Female. Child’s race ........................................................................... Race—American Indian or Alaska Native ............................ Race—Asian ......................................................................... sradovich on DSK3GMQ082PROD with RULES3 Race—Black or African America .......................................... Race—Native Hawaiian or Other Pacific Islander ................ Race—White ......................................................................... Race—Unknown ................................................................... Race—Abandoned ................................................................ VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 PO 00000 Yes No. Yes No. Yes No. Yes No. Yes No. Yes No. Yes No. Frm 00074 Section citation 1355.45(a)(1). 1355.45(a)(2). 1355.45(a)(3). 1355.45(b)(1). 1355.45(b)(2). ....................................................................................... 1355.45(b)(3). 1355.45(b)(3)(i). ....................................................................................... 1355.45(b)(3)(ii). ....................................................................................... 1355.45(b)(3)(iii). ....................................................................................... 1355.45(b)(3)(iv). ....................................................................................... 1355.45(b)(3)(v). ....................................................................................... 1355.45(b)(3)(vi). ....................................................................................... 1355.45(b)(3)(vii). Fmt 4701 Sfmt 4700 E:\FR\FM\14DER3.SGM 14DER3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Rules and Regulations 90597 ATTACHMENT B—ADOPTION ASSISTANCE DATA FILE ELEMENTS § 1355.45—Continued Element Reponses options Race—Declined .................................................................... Yes ....................................................................................... No. Yes ....................................................................................... No. Unknown. Abandoned. Declined. Title IV–E adoption assistance agreement .......................... Title IV–E guardianship assistance agreement. Number ................................................................................. Date ...................................................................................... Date ...................................................................................... Hispanic or Latino Ethnicity .................................................. Assistance agreement type .................................................. Subsidy amount .................................................................... Adoption finalization or guardianship legalization date ........ Agreement termination date ................................................. Section citation [FR Doc. 2016–29366 Filed 12–13–16; 8:45 am] sradovich on DSK3GMQ082PROD with RULES3 BILLING CODE P VerDate Sep<11>2014 18:08 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00075 Fmt 4701 Sfmt 9990 E:\FR\FM\14DER3.SGM 14DER3 1355.45(b)(3)(viii). 1355.45(b)(4). 1355.45(c)(1). 1355.45(c)(2). 1355.45(d). 1355.45(e).

Agencies

[Federal Register Volume 81, Number 240 (Wednesday, December 14, 2016)]
[Rules and Regulations]
[Pages 90524-90597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29366]



[[Page 90523]]

Vol. 81

Wednesday,

No. 240

December 14, 2016

Part III





 Department of Health and Human Services





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 Administration for Children and Families





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 45 CFR Part 1355





 Adoption and Foster Care Analysis and Reporting System; Final Rule

Federal Register / Vol. 81 , No. 240 / Wednesday, December 14, 2016 / 
Rules and Regulations

[[Page 90524]]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1355

RIN 0970-AC47


Adoption and Foster Care Analysis and Reporting System

AGENCY: Administration on Children, Youth and Families (ACYF), 
Administration for Children and Families (ACF), Department of Health 
and Human Services (HHS).

ACTION: Final rule.

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SUMMARY: The Social Security Act (the Act) requires that ACF regulate a 
national data collection system that provides comprehensive demographic 
and case-specific information on children who are in foster care and 
adopted. This final rule replaces existing Adoption and Foster Care 
Analysis and Reporting System (AFCARS) regulations and the appendices 
to require title IV-E agencies to collect and report data to ACF on 
children in out-of-home care, and who exit out-of-home care to adoption 
or legal guardianship, children in out-of-home care who are covered by 
the Indian Child Welfare Act, and children who are covered by a title 
IV-E adoption or guardianship assistance agreement.

DATES: This rule is effective on January 13, 2017 except for the 
removal of Sec.  1355.40 (amendatory instruction 3) and Appendices A 
through E to Part 1355 (amendatory instruction 5), which are effective 
as of October 1, 2019.

FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, Director, Policy 
Division, Children's Bureau, 330 C Street, SW., Washington, DC 20201. 
Email address: cbcomments@acf.hhs.gov. Deaf and hearing impaired 
individuals may call the Federal Dual Party Relay Service at 1-800-877-
8339 between 8:00 a.m. and 7:00 p.m. Eastern Time.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary per Executive Order 13563
II. Background on AFCARS
III. Regulation Development
IV. Discussion of Major Changes to the Final Rule
V. Implementation Timeframe
VI. Section-by-Section Discussion of Comments and Regulatory 
Provisions
VII. Regulatory Impact Analysis
VIII. Tribal Consultation Statement

I. Executive Summary per Executive Order 13563

    Executive Order 13563 requires that regulations be accessible, 
consistent, written in plain language, and easy to understand. This 
means that regulatory preambles for lengthy or complex rules (both 
proposed and final) must include executive summaries. Below is the 
executive summary for this AFCARS final rule.

(1) Purpose of the AFCARS Final Rule

    (a) The need for the regulatory action and how the action will meet 
that need: This rule finalizes AFCARS revisions proposed in a Notice of 
Proposed Rulemaking on February 9, 2015 (80 FR 7132, hereafter referred 
to as the 2015 NPRM) and in a Supplemental Notice of Proposed 
Rulemaking on April 7, 2016 (81 FR 20283, hereafter referred to as the 
2016 SNPRM). We revised the AFCARS regulations to: (1) Incorporate 
statutory requirements enacted since 1993; (2) implement the statutory 
mandate to assess penalties for noncompliant data submissions; (3) 
enhance the type and quality of information title IV-E agencies report 
to ACF; and (4) incorporate data elements related to the Indian Child 
Welfare Act (ICWA). Title IV-E agencies must submit data files on a 
semi-annual basis to ACF. The regulations specify the reporting 
population, standards for compliance, and all data elements. The final 
rule will improve the data reported to ACF by including more 
comprehensive national data on the status of American Indian/Alaska 
Native (AI/AN) children for whom ICWA applies and historical data on 
children in foster care and adds new data elements to better understand 
a child's experience in out-of-home care.
    (b) Legal authority for the final rule: Section 479 of the Act 
mandates HHS regulate a data collection system for national adoption 
and foster care data. Section 474(f) of the Act requires HHS to impose 
penalties for non-compliant AFCARS data. Section 1102 of the Act 
instructs the Secretary to promulgate regulations necessary for the 
effective administration of the functions for which HHS is responsible 
under the Act.

(2) Summary of the Major Provisions of the Final Rule

    (a) Reporting Populations. AFCARS will have two reporting 
populations: the out-of-home care reporting population and the adoption 
and guardianship assistance reporting population. The out-of-home care 
reporting population includes a child of any age who is in foster care 
under the placement and care responsibility of the title IV-E agency; 
is receiving title IV-E foster care maintenance payments under a title 
IV-E agreement; or has run away or whose whereabouts are unknown at the 
time the title IV-E agency becomes responsible for the child. Once the 
child enters the reporting population, he or she remains in the 
reporting population until the title IV-E agency's responsibility for 
the child ends or the child's title IV-E foster care maintenance 
payment pursuant to a title IV-E agreement ends. The adoption and 
guardianship assistance reporting population includes a child whose 
adoption or guardianship was finalized during the report period, and 
the child's adoptive parents or guardians have a title IV-E adoption or 
guardianship assistance agreement with the reporting title IV-E agency.
    (b) Data Structure. Title IV-E agencies must report AFCARS 
information in two separate data files: an out-of-home care data file 
and an adoption and guardianship assistance data file. The out-of-home 
care data file is a combination of point-in-time information (e.g., 
demographics) and information on the events in the child's life over 
time (e.g., every living arrangement and permanency plan). The adoption 
and guardianship assistance data file contains data that capture a 
child's demographic information, payment information, and certain 
agreement information.
    (c) Data Elements. We retained the majority of data elements 
proposed for the out-of-home care reporting population proposed in the 
2015 NPRM, but removed some data elements in response to comments 
(e.g., concurrent permanency plans) and modified others (e.g., 
caseworker visits and prior adoption/guardianship). We reduced the 
adoption and guardianship assistance reporting to include data on the 
child's demographics, subsidy amounts, adoption finalization date, and 
agreement termination date. Also, we retained nearly all of the data 
elements proposed in the 2016 SNPRM for the out-of-home care reporting 
population specific to Indian children as defined in ICWA, but removed 
two data elements: one data element requiring states to report if they 
provided additional information requested by tribes related to 
notification and one data element indicating the date when the state 
title IV-E agency began making active efforts.
    (d) Compliance and Penalties. The final rule strengthens our 
ability to hold title IV-E agencies accountable for submitting quality 
data. A title IV-E

[[Page 90525]]

agency must meet basic file standards, such as timely data file 
submissions and more specific data quality standards, such as 10 
percent or less of a variety of errors. A title IV-E agency that does 
not meet the standards upon initial submission of the data will have 
six months to correct and submit the corrected data. If a title IV-E 
agency does not meet the standards after corrective action, ACF will 
apply the penalties required in statute (section 474(f) of the Act).
    (3) Costs and Benefits. We estimate that costs for the final rule 
will be approximately $40.7 million. Benefits are that we will have an 
updated AFCARS regulation for the first time since 1993. In addition to 
the current uses of the data, the new information will provide more 
comprehensive information to deepen our understanding of guardianships 
and to address the unique needs of Indian children as defined in ICWA 
who are in the state's placement and care responsibility and who exit 
to reunification, adoption or who are transferred to the custody of the 
Indian tribe. This will further our work to draw national statistics 
and trends about the foster care, adoption, and guardianship 
populations for assessing the current state of these federal programs 
and inform national policies with respect to adoption, guardianship, 
and foster care.

II. Background on AFCARS

    AFCARS regulations were originally published in December 1993 in 
response to the statutory mandate for adoption and foster care data in 
section 479 of the Act. That mandate is for a data collection system 
which provides comprehensive national information on:
     the demographic characteristics of adopted and foster 
children and their parents;
     the status and characteristics of the foster care 
population;
     the number and characteristics of children entering and 
exiting foster care, children adopted and children placed in living 
arrangements outside of the responsible title IV-E agency;
     the extent and nature of assistance provided by government 
programs for foster care and adoption and the characteristics of the 
children that receive the assistance; and
     the number of foster children identified as sex 
trafficking victims before entering or while in foster care.
    We use AFCARS data to:
     Draw national statistics and trends about the foster care 
and adoption populations for assessing the current state of foster care 
and adoption.
     Complete the annual Child Welfare Outcomes Report to 
Congress (section 479A of the Act).
     Develop our budgets.
     Calculate payments for the Adoption and Guardianship 
Incentive Payments program.
     Monitor title IV-E agency compliance with title IV-B and 
IV-E requirements, including drawing the population sample for title 
IV-E reviews.
     Develop appropriate national policies with respect to 
adoption and foster care; and
     Address the unique needs of Indian children as defined by 
ICWA in foster care or who exit to adoption, and their families.

III. Regulation Development

    Proposed Rules: We published a NPRM on January 11, 2008 to revise 
AFCARS (73 FR 2082). We did not finalize that NPRM due to the President 
signing into law the Fostering Connections to Success and Increasing 
Adoptions Act of 2008 (Public Law 110-351) that substantially changed 
the title IV-E program. Rather, we analyzed the comments and sought 
additional comments through a Federal Register Notice (75 FR 43187, 
issued July 23, 2010). In September 2014, the President signed into law 
the Preventing Sex Trafficking and Strengthening Families Act (Public 
Law 113-183) that modified the AFCARS requirements in section 479 of 
the Act, the annual Child Welfare Outcomes Report in section 479A of 
the Act, and added a requirement for HHS to submit several reports to 
Congress requiring the collection and reporting of information on 
victims of sex trafficking, children in foster care who are pregnant or 
parenting, and children in foster care in non-foster family settings 
and the services they receive. We published the 2015 NPRM proposing to 
modify the requirements for title IV-E agencies to collect and report 
data to ACF on children in out-of-home care and who were adopted or in 
a legal guardianship with a title IV-E adoption or guardianship 
assistance agreement. In April 2015, we announced our intent to publish 
a supplemental NPRM that would propose adding ICWA-related data 
elements to AFCARS (80 FR 17713, issued April 2, 2015). ICWA 
establishes minimum federal standards for the removal of Indian 
children from their families and the placement of such children in 
foster care or adoptive placements that reflect the unique values of 
Indian culture. In cooperation with the Children's Bureau, the National 
Association of Public Child Welfare Administrators (NAPCWA), an 
affiliate of the American Public Human Services Association (APHSA) 
hosted a conference call with state members of NAPCWA (i.e., 
representatives of state child welfare agencies) on April 27, 2015. The 
purpose of the call was to obtain input from state members on what data 
state title IV-E agencies currently collect regarding ICWA and what 
they believed were the most important information title IV-E agencies 
should report in AFCARS related to ICWA. In addition, the Children's 
Bureau held a tribal consultation via conference call on May 1, 2015 to 
obtain input from tribal leaders on proposed AFCARS data elements 
related to ICWA. Comments were solicited during the call to determine 
essential data elements that title IV-E agencies should report to 
AFCARS. As part of on-going intra- and inter-agency collaboration, ACF 
consulted with federal experts on whether data exists, or not, and its 
utility in understanding the well-being of Indian children, youth, and 
families. ACF also consulted with federal partners at the Department of 
Justice (DOJ) and the Bureau of Indian Affairs (BIA) at the Department 
of the Interior on the ICWA statutory requirements in 25 U.S.C 1901 et 
seq., the Department of Interior, Bureau of Indian Affairs Guidelines 
for State Courts and Agencies in Indian Child Custody Proceedings (80 
FR 10146 issued February 25, 2015, hereafter referred to as BIA's 
Guidelines), and Notice of Proposed Rulemaking to Implement Regulations 
for State Courts and Agencies in Indian Child Custody Proceedings (80 
FR 14880, issued March 20, 2015). After considering all of the 
aforementioned input, the 2016 SNPRM was published on April 7, 2016 (81 
FR 20283) and proposed to require that state title IV-E agencies 
collect and report certain information related to ICWA for Indian 
children in the AFCARS out-of-home care reporting population.
    2015 NPRM Comments: In response to the 2015 NPRM, we received 126 
comment letters from states, Indian tribes and organizations 
representing tribal interests, national advocacy/public interests 
groups, universities, and private citizens. Many commenters supported 
many of the revisions we proposed for reporting historical data and 
collecting new information on topics such as caseworker visits, 
transition plans, and siblings. Commenters suggested including data 
elements related to ICWA. However, some commenters expressed concern

[[Page 90526]]

with the burden of modifying state systems to report the additional 
data elements. Suggestions included that we pare down the overall 
number of data elements to a core set that collects essential 
information. Commenters suggested that some of the proposed data 
elements were better suited in case narratives or case reviews rather 
than AFCARS. We expand on these comments in the section-by-section 
discussion.
    2016 SNPRM Comments: In response to the 2016 SNPRM, we received 91 
comment letters from states, Indian tribes and organizations 
representing tribal interests, national child welfare advocacy/public 
interest groups, universities, and private citizens. Many commenters 
supported collecting ICWA-related data in AFCARS and stated that it 
will better inform practice for Indian children as defined in ICWA. 
However, many commenters also expressed concerns with the burden of 
modifying state data systems to collect and report new and additional 
data elements. They suggested that we pare down the overall number of 
data elements to a core set that collects essential information related 
to ICWA. Commenters stated that much of the proposed data elements were 
better suited for case reviews rather than AFCARS because much of the 
information is currently in case narratives. We expand on these 
comments in the section-by-section discussion.

IV. Discussion of Major Changes to the Final Rule

    Discussed below are the major changes and provisions of the final 
rule.

A. Changes to the Out-of-Home Care Data File

    We received many comments in response to the AFCARS out-of-home 
care data elements proposed in the 2015 NPRM and 2016 SNPRM that helped 
us strengthen, clarify, and streamline the data elements. In general, 
states and the national organization that represents state child 
welfare agencies believe there are data elements in both the 2015 NPRM 
and the 2016 SNPRM that exceed the scope of the requirements of recent 
child welfare legislation and they recommend that ACF review each 
proposed data element and focus on essential data elements that can be 
reasonably collected and compared across states. Some states expressed 
concerns about the proposed data elements, implementation period, 
penalties, timeframe for submission, limited access to court records, 
and associated burden. They suggested paring down the number of data 
elements, providing adequate timeline and structure to implement 
changes including data exchanges with courts, and requested additional 
resources to meet the burden of implementation and training staff. In 
addition, some states expressed concerns that the rule includes data 
elements that attempt to capture qualitative and quantitative 
information that is not easily reducible to a single data field, and 
are more appropriate for a qualitative case review rather than an 
administrative data collection. We made the following major changes in 
the out-of-home care data file based on public comments:
Citizenship and Immigration
    Throughout the final rule, we removed proposed data elements that 
required agencies to report whether or not the child or parent was born 
in the United States. State title IV-E agencies and a national 
organization representing state child welfare agencies were 
overwhelmingly opposed to agencies being required to report this in 
AFCARS, commenting that the data elements are not relevant to their 
work at the state and local level and could adversely impact the 
worker's relationship with families. However, in response to 
suggestions to add data elements related to parental immigration 
detainment or deportation, we included these as response options in the 
Child and family circumstances at removal data element in section 
1355.43(d). These changes are explained in further detail in the 
section-by-section discussion.
Sexual Orientation
    We requested public input in the 2015 NPRM on whether AFCARS should 
include information on whether a child identifies as lesbian, gay, 
bisexual, transgender, or questioning (LGBTQ). We received comments 
both in favor and against title IV-E agencies collecting and reporting 
this information to AFCARS but we were convinced to include data 
elements in the final rule related to the sexual orientation of the 
child (section 1355.44(b)), the child's foster parent(s) (section 
1355.44(e)), and adoptive parent(s) or legal guardian(s) (sections 
1355.44(h)). Our goal in including this information is that the data 
will assist title IV-E agencies to help meet the needs of LGBTQ youth 
in foster care.
    Information on sexual orientation should be obtained and maintained 
in a manner that reflects respectful treatment, sensitivity, and 
confidentiality. Several state and county agencies, advocacy 
organizations and human rights organizations have developed guidance 
and recommended practices for how to promote these conditions in 
serving LGBT youth in adoption, foster care and out-of-home placement 
settings. ACF provides state and tribal resources for Working With 
LGBTQ Youth and Families at the Child Welfare Information Gateway. The 
following links are provided as general examples of such guidance 
(Minnesota and California examples). ACF will provide technical 
assistance to agencies on collecting this information.
    We also added, based on comments, whether there is family conflict 
related to the child's sexual orientation, gender identify, or gender 
expression as a Child and family circumstance at removal reported when 
a child is removed from home in section 1355.44(d).
Child Financial and Medical Assistance
    We proposed in the 2015 NPRM to collect financial and medical 
assistance information that support the child in two separate data 
elements: (1) Identify the source of federal assistance and total per 
diem payment amount for each of the child's living arrangements from a 
list seven types of assistance; and (2) identify whether the child 
received specific non-title IV-E federal or state/tribal financial and 
medical assistance during the report period. We received many comments 
expressing concern about the increased burden in particular to report 
specific federal assistance per diem payment amounts for every living 
arrangement. In response to these concerns, we were persuaded to revise 
the data elements by removing the data element related to per diem 
payment amounts for every living arrangement and consolidated the 
response options from both data elements into one data element. As a 
result, in section 1355.44(b) of the final rule, we require title IV-E 
agencies to report if the child received any of 13 types of state/
tribal and federal financial and medical assistance during the report 
period.
Health, Behavioral or Mental Health Conditions and IDEA Qualifying 
Disability
    We proposed in the 2015 NPRM to require agencies to report on a 
child's health, behavior or mental health conditions in one data 
element and the child's qualifying disability as defined by the 
Individuals with Disabilities Education Act (IDEA) if he/she has an 
Individualized Education Program (IEP) or Individual Family Service 
Plan (IFSP) in another. We received many comments from state title IV-E 
agencies that the response options for both data elements were very 
similar conditions,

[[Page 90527]]

the distinction confusing, and could lead to unreliable data. We were 
persuaded by the commenters to streamline and consolidate the two data 
elements and as a result removed the specific requirement for agencies 
to report a child's qualifying disability, and modified and combined 
the response options into one data element called health, behavioral or 
mental health conditions with 11 conditions for agency to report on the 
child (section 1355.43(b)). This will provide us with better data on 
the child's health characteristics and meets the federal requirement to 
collect this information per section 479A(a)(7)(A)(v) of the Act 
regarding reporting clinically diagnosed conditions for certain 
children in foster care.
Siblings
    We revised how we will collect information on siblings in the out-
of-home care data file in the final rule. In the 2015 NPRM, we proposed 
to collect sibling information in both the out-of-home care data file 
and the title IV-E adoption and guardianship assistance data file:
     The number of siblings of the child who are in out-of-home 
care and the child record numbers for those siblings, those siblings 
who are placed together in out-of-home care and those not placed 
together; and
     the number of siblings who exited out-of-home care to 
adoption or guardianship and the child record numbers of those siblings 
who are living with the child and the child record numbers of those not 
living with the child.
    Commenters generally agreed that information about siblings is 
important to collect, but had concerns that our proposal was too 
complicated and would not yield reliable information because there are 
many and varied reasons for siblings not being placed together. 
Commenters thought the proposal did not take into account the 
complexity of what may constitute a family in the eyes of a child, and 
this information is best captured qualitatively. We carefully reviewed 
the comments and recommendations. While we understand the concerns and 
issues the commenters raised that may make it difficult to report 
sibling information, we determined that we must continue to require 
agencies to report information about sibling placements. As we noted in 
the preamble to the 2015 NPRM, section 471(a)(31)(A) of the Act 
requires title IV-E agencies to make reasonable efforts to place 
siblings removed from their home in the same foster care, kinship 
guardianship or adoptive placement, unless such a placement is contrary 
to the safety or well-being of any of the siblings. While we retained 
the core requirement for agencies to report on whether siblings are 
placed together in foster care and when siblings exit to adoption, we 
simplified reporting. We removed the data elements requiring the agency 
to report the sibling's child record numbers which was one of the 
concerns raised by commenters. Thus, the agency reports in the out-of-
home care data file the following:
     The number of siblings of the child that are in foster 
care, and the number of siblings in the same living arrangement as the 
child on the last day of the report period (section 1355.42(b)).
     The number of siblings of the child who are in the same 
adoptive or guardianship home as the child, if the child exited foster 
care to adoption or guardianship (section 1355.44(h)).
Data Elements Related to ICWA
    2016 SNPRM Rationale: The Government Accountability Office (GAO) 
reported in 2005 that there is no national data on children subject to 
ICWA by which to assess the experiences of AI/AN children in child 
welfare systems or with which to target guidance and assistance to 
states (GAO-05-290 Indian Child Welfare Act). Further, in response to 
comments on the 2015 NPRM and a reevaluation of our data collection 
authority, we were persuaded to propose that state title IV-E agencies 
report ICWA-related data. We proposed the data elements in the 2016 
SNPRM as paragraph (i) to the proposed section 1355.43 (from the 2015 
NPRM) after considering input from comments and federal agency experts. 
Overall, tribes, organizations, states, and private citizens supported 
our mission to collect additional information related to Indian 
children as defined in ICWA. Moreover, some states, tribes, national 
organizations and federal agencies have stated that ICWA is the ``gold 
standard'' of child welfare practice and its implementation and 
associated data collection will likely help to inform efforts to 
improve outcomes for all children and families in state child welfare 
systems.
    Comments: Generally, tribes, organizations representing tribal 
interests, national child welfare advocacy organizations, and private 
citizens fully support the overall goal and purpose of including ICWA-
related data in AFCARS, and the data elements as proposed in the 2016 
SNPRM. These commenters believe that collecting ICWA-related data in 
AFCARS will:
    1. provide data on core ICWA requirements such as ``active 
efforts'' and placement preferences, as well as assess how the child 
welfare system is working for Indian children as defined by ICWA, 
families and communities;
    2. facilitate access to culturally-appropriate services to extended 
families and other tribal members who can serve as resources and high 
quality placements for tribal children;
    3. help address and reduce the disproportionality of AI/AN children 
in foster care; and
    4. provide avenues for collaboration between states and tribes that 
are more meaningful and outcome driven, including improved policy 
development, technical assistance, training and resource allocation as 
a result of having reliable data available.
    Overall, tribal commenters and national child welfare advocacy 
organizations believe that collecting ICWA-related data in AFCARS is a 
step in the right direction to ensure that Indian families will be kept 
together when possible, and will help prevent AI/AN children from 
entering the foster care system. Many of the tribal commenters that 
supported the 2016 SNPRM also recommended extensive training for title 
IV-E agencies and court personnel in order to ensure accurate and 
reliable data reporting. Some commenters recommended additional data 
elements.
    Commenters from some states and the national organization 
representing state child welfare agencies generally supported the 
overall goal and purpose of including ICWA-related data in AFCARS. One 
state commented that reporting national data related to ICWA was needed 
and long over-due. Some states reiterated concerns expressed in their 
comments to the NPRM related to the implementation period, penalties, 
timeline for submission, limited access to court records and the 
associated burden. Those states made similar recommendations to reduce 
the number of elements, provide an adequate implementation timeline, 
and requested additional resources to implement and train staff. As 
with their comments to the NPRM, some states identified proposed ICWA-
related data elements that they believe would not be easily captured in 
a single data field and may therefore be better assessed through 
qualitative case file review. Some states also suggested that we 
clarify the language of the ICWA-related data elements and definitions 
in relation to BIA's regulations in order to increase national 
uniformity of practice and data collection. Several states said that 
they have a small number of AI/AN children

[[Page 90528]]

in their AFCARS reporting population and they requested that federal 
funding be made available to the fullest extent possible to help 
prepare for the low-occurring event of reporting the ICWA-related 
information.
    Final Rule: We understand the burden issues that states raised in 
collecting and reporting additional data to AFCARS; however, we have 
determined in the final rule that the benefits outweigh the burden 
associated with collecting and reporting the additional data. Most 
states commented positively about improving data on Indian children as 
defined in ICWA. As we stated in the 2016 SNPRM, it is unclear how well 
state title IV-E agencies implement ICWA's requirements because of the 
lack of data related to ICWA. Even in states with large AI/AN 
populations, there may be confusion regarding how and when to apply 
ICWA.
    We retained most of the data elements proposed in the 2016 SNPRM 
with some minor revisions to be consistent with the final rule 
published by the Department of the Interior, Bureau of Indian Affairs 
that addresses requirements for state courts regarding ICWA (81 FR 
38778). We modified our final AFCARS rule requiring state title IV-E 
agencies to report whether active efforts were made prior to removal 
and prior to a termination of parental rights (TPR), and to identify 
which active efforts were made prior to removal and during the child's 
out-of-home care episode. We agree with commenters' suggestions that we 
include information when a state title IV-E agency inquired of extended 
family if the child is an Indian child because extended family may have 
information that parents do not know. We removed the requirement for 
states to report the date on which the state title IV-E agency began 
making active efforts in order to coordinate with the BIA's regulation 
clarifying that ICWA applies when the state title IV-E agency knows or 
has reason to know that a child is an Indian child as defined in ICWA. 
We removed the data element requiring states to report whether the 
state provided additional information the tribe requested related to 
notification. We explain this more in the section-by-section 
discussion.
    We determined the best approach for the final rule is to integrate 
the data elements proposed in the 2016 SNPRM as section 1355.43(i) into 
applicable sections of this final rule at section 1355.44. These 
sections are: Child information (section 1355.44(b)); Parent or legal 
guardian information (section 1355.44(c)); Removal information (section 
1355.44(d)); Living arrangement and provider information (section 
1355.44(e)); Permanency planning (section 1355.44(f)); General exit 
information (section 1355.44(g)); and Exit to adoption and guardianship 
information (section 1355.44(h)).
    On June 14, 2016, BIA published the final rule, Indian Child 
Welfare Act Proceedings (81 FR 38778). BIA's final rule requires fewer 
court orders than its proposed rule and increases flexibility for 
recording court decisions. In response to state and tribal comments 
suggesting congruence with the BIA's final rule, we revised data 
elements in this final rule as appropriate to reflect the BIA's 
regulations including removing requirements that state title IV-E 
agencies report certain information only from ICWA-specific court 
orders. These changes should allow the state title IV-E agency more 
flexibility, alleviate some of the burden and other concerns identified 
by states, help target technical assistance to increase state title IV-
E agency communication and coordination with courts, and improve 
practice and national data on all children who are in foster care.

B. Revisions to Data on Children Who Are Adopted and Children Who Are 
Placed in Legal Guardianships

    2015 NPRM Proposal and Rationale: In the 2015 NPRM, we proposed a 
new data file to collect information on children who have title IV-E 
adoption or guardianship assistance agreements and several new out-of-
home care data elements to collect information on children who exit 
out-of-home care to adoption or legal guardianship.
    Title IV-E Adoption and Guardianship Assistance data file: We 
proposed in the 2015 NPRM to require the title IV-E agency to report 
ongoing information on children under a title IV-E adoption and 
guardianship assistance agreement (called the title IV-E adoption and 
guardianship assistance data file), regardless of whether the agreement 
is for an ongoing subsidy, nonrecurring costs or in the case of a title 
IV-E finalized adoption, a Medicaid-only subsidy. The information 
included: demographics on each child, finalization/legalization dates, 
jurisdiction of the adoption, adoption or guardianship placing agency, 
subsidy and nonrecurring costs amounts, and sibling information.
    Section 1355.44(h) Exit to adoption and guardianship information: 
We also proposed data elements in the out-of-home care data file 
related to all children who exit out-of-home care to adoption or legal 
guardianship. This included children who have a title IV-E adoption or 
guardianship assistance agreement, with or without a subsidy, and those 
who do not have either an agreement or subsidy. We proposed to require 
that the title IV-E agency report information on children who exit out-
of-home care to adoption or legal guardianship, including: Demographic 
information (race, ethnicity, date of birth) on the adoptive parents/
legal guardians; child's relationship to the adoptive parents/legal 
guardians; whether the child was placed within or outside of the state 
or tribal service area, or into another country for adoption or legal 
guardianship, and if so the name of the jurisdiction; and the agency 
that placed the child.
    Comments: We received public comments on the overall proposal to 
collect information on children under title IV-E adoption and 
guardianship agreements, comments on individual data elements, and 
suggestions for expanding the information to be reported. A national 
organization representing state child welfare agencies requested that 
we remove the title IV-E adoption and guardianship assistance data file 
from the final rule and in general recommended that all AFCARS data 
elements be clearly defined and structured to provide accurate, 
reliable, and valid information. Additional comments and concerns 
raised by the organization were that: some state laws and/or policies 
regarding the oversight allowed with an adoptive family restricts the 
ongoing collection and use of information about these children; 
children under guardianship and adoption assistance agreements do not 
have open service cases even when there is a subsidy; many states 
capture the financial information regarding title IV-E adoption and 
guardianship subsidies in other systems; and many states would be 
required to make a significant changes to their application and report 
programs. In addition, the organization specifically noted that 
requiring agencies to report on an optional program for a child under a 
title IV-E guardianship assistance agreement reaches beyond our 
statutory authority. Several others, including states, agreed with the 
recommendation to remove the title IV-E adoption and guardianship 
assistance data file, raising additional concerns about the burden on 
workers. Some national advocacy/public interest groups representing 
children and adoption agency interests supported the collection of 
information on children under title IV-E assistance agreements. Some of 
these groups suggested including data elements on children with state 
guardianship agreements and additional historical

[[Page 90529]]

data elements. We also received specific comments on the data elements 
in section 1355.44(h) that we address in the section-by section 
discussion of the preamble related to gender of the adoptive parents 
and legal guardians, sexual orientation of the adoptive parents and 
legal guardians, the definition of kin, and information on siblings.
    We carefully reviewed all of the comments and reconsidered our 
essential needs at the federal level for data on children who are 
adopted and in legal guardianships, and revised the final rule as 
described below.
    Final Rule: Adoption Assistance data file: We retained the adoption 
and guardianship assistance reporting population as proposed, given the 
growing dominance of this population as a component of the title IV-E 
beneficiary population. However, we reduced the data elements to those 
that are essential for our needs in understanding this population of 
children who are receiving Federal benefits: a child's basic 
demographic information, subsidy amounts, and adoption and guardianship 
finalization and subsidy termination dates. As specified in the NPRM, 
this information will be used to discern changing circumstances and 
fluctuations in title IV-E payment amounts, responding to questions 
raised by Congress, and for budgetary planning and projection purposes. 
We removed the requirements for agencies to report non-recurring costs 
amounts as we do not have a specified need for this case level 
information and agencies report this type of information in the 
aggregate. We reduced reporting on siblings which is only reported in 
the out-of-home care file, as is the adoption jurisdiction and adoption 
reporting agency.
    Final Rule: Section 1355.44(h) Exit to adoption and guardianship 
information: We determined that it was essential for us to have more 
robust information about all children who exit state or tribal foster 
care to adoption or legal guardianship, which is found in the out-of-
home care data file at section 1355.44(h). We added and revised data 
elements based on commenters' suggestions to ensure we have a 
comprehensive set of information about children who exit foster care to 
adoption and guardianship. The most notable data elements we added to 
the out-of-home care data file for children who exit to adoption or 
guardianship are:
     Sexual orientation of the adoptive parent(s) or legal 
guardian(s);
     Tribal membership of the adoptive parent(s) or legal 
guardian(s);
     The assistance agreement type (adoption assistance 
agreement, state/tribal adoption assistance agreement, adoption-title 
IV-E agreement, non-recurring expenses only; Medicaid only; title IV-E 
guardianship assistance agreement, state/tribal guardianship assistance 
agreement, or no agreement); and
     The number of siblings of the child who are in the same 
adoptive or guardianship home as the child who exited out-of-home care 
to adoption or guardianship.

C. Report Periods and Deadlines

    In section 1355.43(a) Report periods and deadlines, we modified the 
final rule to allow title IV-E agencies up to 45 days after the end of 
the report period to transmit the AFCARS data files.

V. Implementation Timeframe

    We are providing two fiscal years for title IV-E agencies to comply 
with sections 1355.41 through 1355.47. State and tribal title IV-E 
agencies must continue to report data related to children in foster 
care and who have been adopted with title IV-E agency involvement to 
ACF in accordance with section 1355.40 and the appendix to part 1355 
during the implementation period. It is essential for agencies to 
continue to report AFCARS data to ACF without interruption because 
AFCARS data is used for various reports, planning and monitoring, and 
to make the Adoption and Guardianship Incentive awards.
    We received comments from many states on the implementation 
timeframe and several offered suggestions. State commenters to both the 
2015 NPRM and the 2016 SNPRM indicated they would need sufficient time 
to make changes to their electronic case management systems to collect 
new information. Several state title IV-E agencies and a national 
organization representing state title IV-E agencies indicated that 
implementing the ICWA-related data elements proposed in the 2016 SNPRM 
in addition to the elements proposed in the 2015 NPRM would require 
more time than one year and two states indicated a need for two to 
three years. Several state title IV-E agencies indicated that ICWA-
related information is documented in case files and in narrative 
formats. Additionally, several state title IV-E agencies noted that 
collecting the information from courts would impact their 
implementation timeframe because the court information systems do not 
always contain the information proposed in the 2016 SNPRM or because 
there is no data exchange interface between the court and state title 
IV-E agency's case management system. Commenters to the 2015 NPRM also 
suggested that this final rule not be implemented until after Round 3 
of the Child and Family Services Reviews (CFSR).
    State title IV-E agencies and the national organization 
representing state title IV-E agencies recommended either a tiered or a 
phased-in approach to compliance with the AFCARS requirements and 
penalties. Several of those commenters suggested that we allow agencies 
additional time to implement the changes proposed in the 2016 SNPRM 
regarding ICWA data elements.
    We understand states' concerns about the system changes that are 
needed since this final rule will implement the statutory AFCARS 
penalties. However, we determined that a two federal fiscal year period 
is sufficient for states to implement all changes for the AFCARS final 
rule. We are not providing a phase-in period for the ICWA-related data 
elements. As we noted in the 2016 SNPRM, we are issuing one final rule 
on AFCARS and we considered all comments on the 2015 NPRM and the 2016 
SNPRM.

VI. Section-by-Section Discussion of Comments and Regulatory Provisions

Section 1355.40 Foster Care and Adoption Data Collection

    In this section, we modified the requirements in the current 
section 1355.40 to require title IV-E agencies to continue to submit 
AFCARS data during the implementation timeframe. We must keep the 
current AFCARS regulations at section 1355.40 and the appendices to 
part 1355 until the dates listed in the DATES section of this rule. 
This means that title IV-E agencies must continue to report AFCARS data 
in the same manner they do currently until the implementation date of 
this final rule as discussed in section V of this final rule.

Section 1355.41 Scope of the Adoption and Foster Care Analysis and 
Reporting System

    In this section, we set forth the scope of AFCARS.
    In paragraph (a), we specify that state and tribal title IV-E 
agencies must collect and report AFCARS data, unless it is indicated 
for state title IV-E agencies only.
    In paragraph (b), we specify that title IV-E agencies must submit 
the data to ACF on a semi-annual basis as required in section 1355.43 
in a format according to ACF's specifications.
    In paragraph (c)(1), we clarified that the terms in section 1355.41 
through

[[Page 90530]]

1355.47 are defined as they appear in 45 CFR 1355.20, except that for 
purposes of specified data elements related to the Indian Child Welfare 
Act of 1978 (ICWA), terms are defined as they appear in 25 CFR 23.2 and 
25 U.S.C. 1903. This is similar to paragraph (i)(1) as proposed in the 
2016 SNPRM and incorporates the definitions recently promulgated in 
BIA's regulations at 25 CFR 23.2.
    In paragraph (c)(2), we clarified for state title IV-E agencies 
that in cases where ICWA applies, the term ``legal guardian'' includes 
an Indian custodian as defined in ICWA at 25 U.S.C. 1903. These data 
elements are in sections 1355.44(c)(1), (c)(2), (d)(4), and (d)(5). We 
understand that there are instances when ICWA applies where Indian 
custodians may have legal responsibility for the child. Since we are 
integrating the ICWA-related data elements into select sections of this 
regulation, we want to take this opportunity to clarify that in the 
instances where ICWA applies and an Indian custodian may have legal 
responsibility of the child who is now in out-of-home care, the term 
``legal guardian'' includes an Indian custodian.
    Comment: A few commenters suggested additional definitions, such as 
``voluntary'' placement, ``ICWA eligible child,'' and ``reactivation'' 
of children who have multiple removals for the same reasons, and to 
expand the definition of tribe to distinguish between federally 
recognized, non-federally recognized, and historic/aboriginal tribes.
    Response: We did not add a definition of ``voluntary'' placement 
because the term is already defined by section 472(f) of the Act. We 
did not define ``reactivation'' because it is not a term used in these 
regulations. We did not specifically define ``ICWA eligible child'' in 
this regulation, but we did include by reference definitions in the 
BIA's ICWA regulation at 25 CFR 23.2 so if the BIA amends the 
definition of children to whom ICWA applies, it will automatically be 
changed for the purpose of these regulations rather than requiring ACF 
to issue another regulatory action. Since we integrated the ICWA-
related data elements into other sections of the final rule we no 
longer have a list of applicable definitions pertaining to the ICWA-
related data elements. Rather, section 1355.41(c)(1) specifies that 
terms in sections 1355.41 through 1355.47 are defined as they appear in 
45 CFR 1355.20, except that for purposes of data elements related to 
ICWA, terms that appear in sections 1344.44(b)(3) through (b)(8), 
(c)(3), (c)(4), (c)(6), (c)(7), (d)(3), (e)(8) through (e)(11), 
(f)(10), and (h)(20) through (h)(23) are defined as they appear in 25 
CFR 23.2 and 25 U.S.C. 1903. This means that the ICWA-related data 
elements will follow either BIA regulations as they appear in 25 CFR 
23.2 or the statute at 25 U.S.C. 1903. In paragraph (c)(2), we 
clarified for state title IV-E agencies that in cases where ICWA 
applies, the term ``legal guardian'' includes an Indian custodian as 
defined in ICWA at 25 U.S.C. 1903. These data elements are in sections 
1355.44(c)(1), (c)(2), (d)(4), and (d)(5).

Section 1355.42 Reporting Populations

    In this section, we define the reporting populations for the AFCARS 
out-of-home care and adoption and guardianship assistance data files.
Section 1355.42(a) Out-of-Home Care Reporting Population
    In paragraph (a), we define and clarify the out-of-home care 
reporting population. Consistent with current AFCARS, the child enters 
the out-of-home care reporting population when the child's first 
placement meets the definition of foster care in section 1355.20. A 
title IV-E agency must report a child of any age who is in out-of-home 
care for more than 24 hours.
    Comment: Several state title IV-E agencies, a national organization 
representing state child welfare agencies and other commenters 
supported the out-of-home care reporting population. However, several 
states and others expressed confusion over who is included in this 
population, particularly juvenile justice youth, runaway and homeless 
youth, youth on a trial home visit and children who reenter care.
    Response: We take this opportunity to clarify the reporting 
population for out-of-home care. Overall, the out-of-home care 
reporting population includes a child of any age who is in foster care 
as defined in 1355.20 for longer than 24 hours until the title IV-E 
agency no longer has placement and care responsibility. The out-of-home 
care reporting population includes a child under the title IV-E 
agency's placement and care who:
     Has run away or whose whereabouts are unknown at the time 
the title IV-E agency becomes responsible for the child, until the 
title IV-E agency's responsibility for placement and care ends;
     is placed into foster care after a non-foster care 
setting, until the title IV-E agency's placement and care 
responsibility ends;
     is placed at home, including a child on a trial discharge 
or trial home visit, until the title IV-E agency's placement and care 
responsibility ends;
     is placed from a foster care placement into a non-foster 
care setting, until the title IV-E agency's placement and care 
responsibility ends;
     is age 18 and older, including those in a supervised 
independent living setting, until the title IV-E agency's placement and 
care responsibility ends.
    The out-of-home care reporting population also includes a child who 
is under the placement and care responsibility of another public agency 
that has an agreement with the title IV-E agency pursuant to section 
472(a)(2)(B) of the Act, or an Indian tribe, tribal organization or 
consortium with which the title IV-E agency has an agreement, and, on 
whose behalf title IV-E foster care maintenance payments are made until 
title IV-E foster care maintenance payments cease to be made on behalf 
of the child. We specifically note that children placed pursuant to 
title IV-E agreements are reported in the out-of-home care reporting 
population only if the child is receiving a title IV-E foster care 
maintenance payment under the title IV-E agreement. We added the phrase 
``for more than 24 hours'' to the regulation so that it now reads ``A 
title IV-E agency must report a child of any age who is in out-of-home 
care for more than 24 hours.'' We want to be clear how title IV-E 
agencies must report children in the out-of-home care reporting 
population, consistent with current AFCARS regulations, found in the 
Appendix to section 1355. Since we removed the appendix, we are adding 
it to the regulation. During AFCARS Assessment Reviews, states have 
inquired about this policy many times and we feel that it is clearer to 
specify this in regulation.
    Consistent with existing AFCARS policy, the out-of-home care 
reporting population also includes a child who is in foster care under 
the joint responsibility of another public agency, such as the juvenile 
justice agency, and the title IV-E agency until title IV-E foster care 
maintenance payments cease to be made on behalf of the child (see the 
Child Welfare Policy Manual section 1.3, question 13).
    We understand there has been confusion in the past both in the 
reporting and analysis of the current AFCARS foster care reporting 
population related to children who are under the responsibility of 
another public agency or an Indian tribe pursuant to a title IV-E 
agreement. As noted in paragraph (a)(1)(ii), title IV-E agencies must 
include children for whom title IV-E foster care maintenance payments 
are provided under a title IV-

[[Page 90531]]

E agreement between the title IV-E agency and a public agency or an 
Indian tribe. We would like to clarify that only those children who are 
provided a title IV-E foster care maintenance payment under the title 
IV-E agreement are included in the out-of-home care reporting 
population; it does not include all the children in the other public 
agency or Indian tribe's placement and care responsibility. In 
paragraph (a)(1)(ii) we refer to only title IV-E agreements that meet 
the requirements of section 472(a)(2) of the Act; not all interagency 
agreements or contracts with the other public agency or Indian tribe 
for services or payments meet these requirements. Section 472(a)(2) of 
the Act allows for payment of title IV-E foster care maintenance on 
behalf of an eligible child if there is a title IV-E agreement with 
another public agency or Indian tribe even though the child is not 
under the placement and care responsibility of the reporting title IV-E 
agency. This clarification reflects a continuation of the AFCARS 
reporting requirements and is not a change in the out-of-home care 
reporting population. To further clarify the children in the out-of-
home care reporting population, we modified the regulation in section 
1355.44(d)(6) Child and family circumstances at removal to identify 
these children reported in AFCARS and we discuss in the preamble for 
that section.
    Comment: Several state title IV-E agencies expressed concerns that 
the proposal expands the reporting population and will be burdensome 
for agencies to report all data elements on the reporting population; 
one state expressed concern that the reporting population would impact 
their CFSR measures; and one state commented that the expansion of the 
reporting population imposes an unrealistic mandate on state child 
welfare agencies to be responsible and penalized for data collected by 
other agencies.
    Response: We retained the requirement for title IV-E agencies to 
report a child until the title IV-E agency no longer has placement and 
care responsibility. We expect that title IV-E agencies would have the 
information that we require to be reported if they have responsibility 
for the child, regardless of where the child is placed. The revision to 
the out-of-home care reporting population has no impact on the 
population of children for the CFSR measures because only the children 
in foster care will be included in the outcome measures. We continue to 
believe that the benefits of data reporting on the out-of-home care 
reporting population will allow ACF to develop a comprehensive picture 
of a child's experience in the title IV-E agency's placement and care 
with all removals, living arrangements, permanency plans, and exits 
from out-of-home care and the ability to better inform our monitoring 
efforts. We will provide technical assistance to agencies on any 
remaining clarifications regarding state specific questions related to 
the reporting population.
Section 1355.42(b) Adoption and Guardianship Assistance Reporting 
Population
    In paragraph (b), we define the reporting population for the 
adoption and guardianship assistance data file.
    In paragraph (b)(1) we require that the title IV-E agency must 
report data as described in section 1355.45 on each child who meets one 
of the conditions in the paragraphs (b)(1)(i) or (b)(1)(ii).
    In paragraph (b)(1)(i), we require the title IV-E agency to report 
information required by section 1355.45 on any child for whom there is 
a finalized adoption under a title IV-E adoption assistance agreement 
(per section 473(a) of the Act) with the reporting title IV-E agency 
that is or was in effect at some point during the report period.
    In paragraph (b)(1)(ii), we collect the information in section 
1355.45 on any child in a legal guardianship who is under a title IV-E 
guardianship assistance agreement, pursuant to section 473(d) of the 
Act, with the reporting title IV-E agency that is or was in effect at 
some point during the current report period.
    In paragraph (b)(2), we clarify that a child remains in the 
adoption and guardianship assistance reporting population through the 
end of the report period in which the title IV-E agreement ends or is 
terminated.
    Comment: Many commenters objected to reporting ongoing information 
on children who are in this reporting population, stating that adopted 
children do not have open service cases even when there is a subsidy 
attached. Additionally, many commenters felt that collecting 
information on any child who is in a legal guardianship under a title 
IV-E guardianship assistance agreement reaches beyond our statutory 
authority and would require a significant change in the application and 
report programs and laws and policies in many states. Several other 
groups agreed with this opinion and raised concerns about the burden on 
workers and duplication to information in the out-of-home care data 
file (section 1355.44(h)). Some national advocacy/public interest 
groups representing children and adoption agency interests were 
supportive of the separate data file proposed in the 2015 NPRM, and 
some suggested including children for whom there are finalized 
adoptions and guardianships without title IV-E assistance agreements.
    Response: We carefully considered the comments and have retained 
the adoption and guardianship assistance reporting population as 
proposed for the reasons we identified in the NPRM and given the 
growing dominance of this population as a component of the title IV-E 
beneficiary population. Overall, we believe there is a basic good 
governance principle at stake in having data about children who are 
receiving Federal benefits, especially considering the tremendous 
growth in the title IV-E adoption and guardianship assistance 
population over the last several years. While there is no statutory 
mandate to collect information for children under a title IV-E 
guardianship assistance agreement, section 479(c)(3)(C)(i) of the Act 
authorizes AFCARS to collect data on the ``characteristics of children 
. . . removed from foster care'', which encompasses the title IV-E 
guardianship assistance population. We continue to believe it is 
essential to collect the same information on children under title IV-E 
guardianship agreements as for title IV-E adoption agreements because 
we have the same need for the information for children supported by 
title IV-E funding.

Section 1355.43 Data Reporting Requirements

    This section contains the AFCARS data reporting requirements.
Section 1355.43(a) Report Periods and Deadlines
    In paragraph (a), we specify that: (1) There are two six-month 
report periods based on the federal fiscal year, October 1 to March 31 
and April 1 to September 30 and; (2) the title IV-E agency must submit 
the AFCARS data files to ACF within 45 days of the end of the report 
period (i.e., by May 15 and November 14).
    Comment: A national organization representing state child welfare 
agencies recommended that we maintain the 45 day window for submitting 
data. They believe the 30 day requirement proposed in the 2015 NPRM 
would compromise data accuracy and integrity because some data may be 
excluded and there would not be enough time for agencies to check for 
errors in 30 days, particularly for state-supervised, county-
administered states. Eight states and three other commenters opposed 
the shortened timeframe for the same reasons.

[[Page 90532]]

    Response: We modified the regulation to allow title IV-E agencies 
up to 45 days after the end of the report period to transmit the AFCARS 
file to accommodate commenter concerns. However, we wish to emphasize 
that the purpose of this 45 day transmission period is to extract the 
data and ensure the file is in the proper format for transmission. Data 
accuracy and integrity is to be completed by the IV-E agency on a 
continuous basis throughout the year. This is consistent with current 
AFCARS guidance.
Section 1355.43(b) Out-of-Home Care Data File
    In paragraph (b), we provide instructions on how the title IV-E 
agency must report information for the out-of-home care reporting 
population.
    In paragraph (b)(1), we require a title IV-E agency to submit the 
most recent information for data elements in the General information 
(section 1355.44(a)) and Child information (section 1355.44(b)) 
sections of the out-of-home care data file.
    In paragraph (b)(2), we require the title IV-E agency to submit the 
most recent and historical information for most data elements in the 
following sections of the out-of-home care data file, unless the 
exception in paragraph (b)(3) applies:
     Sec.  1355.44(c) Parent or legal guardian information
     Sec.  1355.44(d) Removal information
     Sec.  1355.44(e) Living arrangement and provider 
information
     Sec.  1355.44(f) Permanency planning
     Sec.  1355.44(g) General exit information
     Sec.  1355.44(h) Exit to adoption and guardianship 
information
    Comment: In general, states, a national organization representing 
state child welfare agencies, and other national/advocacy organizations 
and individuals were supportive of the move to a historical data set 
because of the benefits in understanding outcomes for children and 
their experiences in out-of-home care. However, many commented that 
they are concerned that the final rule will be a challenge for states 
to implement because of a significant burden to title IV-E agencies to 
collect and report new additional historical data with existing 
resources. In addition, they expressed concern with the magnitude of 
historical data that would be required to be reported as it would need 
to be tracked at local levels in order to produce six-month report 
period data files.
    Several national advocacy organizations and others made suggestions 
to expand historical reporting to other data elements, while others, 
mostly state title IV-E agencies, suggested we limit the data to ``core 
elements'' that have utility and validity at the national level. A 
national organization representing state child welfare agencies 
suggested that we allow AFCARS revisions to occur in stages, by first 
creating historical data files and then adding data elements that are 
truly necessary in a federal database.
    Response: We are retaining the requirement that title IV-E agencies 
report certain historical data for the original reasons we proposed. In 
general, we removed several data elements and included other data 
elements as appropriate, which we explain in the section-by-section 
preamble. We acknowledge that there are a few states that currently do 
not have a comprehensive electronic case management system or central 
database that contains the child's information across all counties. 
However, based on AFCARS Assessment Reviews, we believe that many of 
the historical data elements are available in the state's information 
system or electronic case record. We continue to believe that the 
benefits of historical data reporting will allow ACF to develop a 
comprehensive picture of a child's experience in the title IV-E 
agency's placement and care with all entries, living arrangements, 
permanency plans, and exits from out-of-home care. We believe there 
will be many benefits from receiving historical data, including: 
eliminating information gaps that exist in current AFCARS data which 
raise questions about the child's experiences and make the data more 
difficult to analyze; building upon ACF's ability to conduct 
sophisticated analyses of what happens to a child or groups of children 
in foster care; and providing better data to inform the current CFSR 
and other outcome monitoring efforts such as time in foster care, 
foster care re-entries and the stability of foster care placements. 
Finally, we did not revise the regulation to allow AFCARS revisions to 
occur in stages. Issuing one final rule on AFCARS with all revisions is 
the efficient way to revise AFCARS, since revisions to AFCARS have been 
proposed since the 2008 NPRM. We will provide technical assistance via 
webinars and other media channels to facilitate AFCARS implementation 
as well as offer one-on-one assistance to title IV-E agencies.
    Comment: Several states noted that there was not enough detail on 
the technical specifics related to the structure of the data set and 
asked for more specificity to better understand how title IV-E agencies 
will need to modify their systems. States, organizations, and others 
asked technical clarification questions and several recommended that 
states have access to these data files. Finally, there were a few 
technical clarification questions about the state specific system 
issues.
    Response: While we are not regulating the technical specifications 
for reporting historical data, we anticipate that title IV-E agencies 
will submit a data file in much the same way that they submit it now, 
only with more information. Most of the information that will be 
historical is currently stored in a state's electronic case file, based 
on our current knowledge of agency systems through our AFCARS 
Assessment Reviews. We will work through these technical pieces during 
implementation, which is consistent with the approach we took for the 
National Youth in Transition Database (NYTD). We intend to issue 
technical guidance as noted throughout the preamble regarding file 
specifications. Also, we will provide technical assistance via webinars 
and other media to implement AFCARS as well as providing one-on-one 
assistance with title IV-E agencies.
    In paragraph (b)(3), we require that the title IV-E agency report 
the date of removal, exit date, and exit reason for each child who had 
an out-of-home care episode prior to the final rule. This means that 
title IV-E agencies do not need to report complete historical and 
current information for these children. We did not receive any 
comments.
Section 1355.43(c) Adoption and Guardianship Assistance Data File
    In paragraph (c), we require that the title IV-E agency report the 
most recent information for the applicable data elements in Sec.  
1355.45 that pertains to each child in the adoption and guardianship 
assistance reporting population on the last day of the report period. 
We did not receive comments on the 2015 NPRM specific to this 
paragraph.
Section 1355.43(d) Missing Information
    In paragraph (d), we specify how the title IV-E agency must report 
missing information.
    Comment: Several states and a national organization representing 
state child welfare agencies were concerned about the burden on workers 
of having to manually fill in blank information and stated that data 
systems should be able to automatically mark as blank.
    Response: We would like to take this opportunity to explain what is 
meant by ``missing'' information as workers will not ``manually fill in 
blank

[[Page 90533]]

information.'' The requirements in this paragraph relate to the 
technical aspects of creating the AFCARS data file and prohibit 
defaulting to a valid response option when the worker did not enter 
information into the case management system and it is therefore 
missing. This prohibition is longstanding ACF practice and consistent 
with the statutory mandate in section 479(c)(2) of the Act that any 
AFCARS data collected must be reliable and consistent over time. If the 
worker did not enter information into the case management system 
necessary for reporting on a particular data element (for example, it 
is missing), then the agency must report the data element as blank. We 
did not make substantive changes to the final rule in response to 
comments.
    Comment: Several commenters asked how ``blank'' information is 
distinguished from missing data and if missing information could be 
used to determine penalties.
    Response: ``Blank'' is a valid response option only when specified 
in individual data elements in section 1355.44. When ``blank'' is not a 
valid response option, and no information was entered into the 
information system for a data element, then that is considered a 
missing data error under section 1355.46(b)(1). This is consistent with 
ACF's longstanding practice. Errors under section 1355.46(b) are 
subject to the penalty provisions of section 1355.47.
Section 1355.43(e) Electronic Submission
    In paragraph (e), we require a title IV-E agency to submit its data 
files to ACF electronically, in a format according to ACF's 
specifications.
    Comment: Several commenters requested details for data file 
submissions, the type of technologies title IV-E agencies must use to 
submit AFCARS data, and made a recommendation to use the same 
electronic submission process used for the NYTD.
    Response: We have intentionally left the specific details for 
electronic submissions out of the regulation. We have learned through 
our experience with the existing AFCARS that it is prudent not to 
regulate the technical specifications for transmitting data because as 
technology changes, we must keep pace with the most current, practical, 
and efficient transmission methods that will meet title IV-E agency and 
federal needs. We currently provide guidance on submission of technical 
requirements and specifications through official ACF policy and 
technical bulletins and we will continue to do so in providing guidance 
on the final rule. We appreciate the suggestion with regard to the NYTD 
process, and we will determine whether we can use a similar process 
upon implementation of the final rule.
Section 1355.43(f) Record Retention
    In paragraph (f), we require that title IV-E agencies must retain 
all records necessary to comply with the data requirements in sections 
1355.41 through 1355.45. As we stated in the 2015 NPRM (80 FR 7146), 
practically, this means the title IV-E agency must keep applicable 
records until the child is no longer of an age to be in the reporting 
populations.
    Comment: Four states expressed concerns with the proposed record 
retention timeframes, stating that they extend beyond the state's 
record retention and destruction laws, may require a legislative change 
to meet this retention schedule, and potential costs to procure new 
storage hardware or expand data centers.
    Response: This is a clarification of current AFCARS requirements. 
Currently, title IV-E agencies must maintain the child's history up to 
the time the child would no longer be eligible for services due to age 
in order to report the date of the first removal, the number of 
removals, and the date of discharge from the prior removals. Based on 
our AFCARS and SACWIS reviews, we understand that all agencies have 
electronic case records and that title IV-E agencies maintain all the 
information in their systems up to the time the child would no longer 
be eligible for services due to age. We understand that the typical age 
will be between 18 and 21, depending on the state or tribe's foster 
care program and we will work with agencies on this at implementation. 
We want to be clear that title IV-E agencies must retain all 
information on a child that is required to be reported to AFCARS 
electronically and not purge the data since AFCARS data files will now 
contain certain historical information on children in the out-of-home 
care reporting population. We are retaining the data element without 
changes in the final rule because title IV-E agencies must report 
historical information on a child in out-of-home care to be in 
compliance.

Section 1355.44 Out-of-Home Care Data File Elements

    This section includes all of the data element descriptions for the 
out-of-home care reporting population.
Section 1355.44(a) General Information
    In paragraphs (a)(1) through (a)(3), we require that title IV-E 
agencies collect and report the following general information: (1) The 
title IV-E agency submitting the AFCARS data; (2) the report period 
date; and (3) the local county, jurisdiction or equivalent unit that 
has responsibility for the child. We received no substantive comments 
on the general information data elements in paragraphs (a)(1) through 
(a)(3) or recommendations for changes. However, we clarified in the 
regulation text that the information must be submitted in a format 
according to ACF's specifications.
    In paragraph (a)(4), we require that the title IV-E agency report 
the child's record number, which is an encrypted unique person 
identification number that is the same for the child, no matter where 
the child lives while in the placement and care responsibility of the 
title IV-E agency in out-of-home care and across all report periods and 
episodes.
    Comment: A couple of commenters noted that maintaining one 
encrypted record number for each child would be useful, for example, in 
reducing duplicate entries and erroneous eligibility determinations. 
However, a couple of state title IV-E agencies questioned why the 
agency must maintain the same number since agencies must include the 
complete placement history in each AFCARS transmission noting the 
administrative burden associated with maintaining the same number. 
Another commenter indicated there could be difficulties in maintaining 
the same child record number if the child was previously placed in a 
different county.
    Response: Our proposal for a consistent, unique, encrypted child 
record number for AFCARS reporting purposes is consistent with current 
practice. Ensuring that the child record number is consistent 
throughout the child's entire out-of-home care experience ensures that 
the agency reports the child's entire history. It also assists us in 
the analysis of the NYTD data, which also requires the use of an 
encrypted child record number. We are retaining this requirement and 
will provide technical assistance around this data element, including 
assistance related to maintaining record numbers across counties, to 
any agency requesting it at implementation.
Section 1355.44(b) Child Information
    In paragraph (b), we require that the title IV-E agency report 
information about the child in out-of-home care

[[Page 90534]]

including demographic, health, parenting, and other pertinent 
information about the child. We made several revisions to this section 
from the 2015 NPRM and integrated ICWA-related data elements that were 
proposed in the 2016 SNPRM, revised data elements as suggested by 
commenters, moved data elements, and removed some proposed data 
elements that we describe below:
     Removed the data element requiring agencies to report 
whether or not the child was born in the United States. State title IV-
E agencies and a national organization representing state child welfare 
agencies were opposed, stating: this level of specificity is not 
relevant to child welfare practice, could adversely impact work with 
families, and is not necessary in the AFCARS; it will be difficult to 
draw conclusions from this element; and, it does not address other 
situations, for example, whether the child is a naturalized citizen or 
one of the many U.S. citizens who are born on foreign soil. We still 
believe it is important to track information related to parental 
immigration detainment or deportation because we understand that this 
contributes to children entering foster care across the nation. In 
fact, the Applied Research Center recently estimated that up to 5,100 
children were in foster care after their parents were detained or 
deported. Therefore, we added a circumstance at removal in paragraph 
(d) to address this instead.
     Removed data elements requiring agencies to report 
information related to the child's qualifying disability under IDEA. 
Several state title IV-E agencies and a national organization 
representing state child welfare agencies expressed confusion with the 
conditions in this data element and the health, behavioral or mental 
health conditions stating that the conditions were cumbersome and 
overlapped, which would lead to confusion among workers and commenters 
suggested the conditions be reconciled. Thus, we removed the data 
element on IDEA qualifying disability and revised the data element on 
health, behavioral or mental health conditions because we still want to 
track child disabilities, but we do not need to know the disability 
that qualified a child for IDEA (discussed below).
Section 1355.44(b)(1) Child's Date of Birth
    In paragraph (b)(1), we require the title IV-E agency to report the 
child's birthdate. If the actual date of birth is unknown because the 
child has been abandoned, the agency must provide an estimated date of 
birth.
    Comment: One commenter suggested that we expand the definition of 
``abandoned'' to include circumstances where the child was left with 
others and the identity of the parent(s) is known, but the parent(s) 
has not returned and therefore the child's date of birth is not known.
    Response: We have provided a specific definition of abandoned as 
follows: The child was left alone or with others and the identity of 
the parent(s) or legal guardian(s) is unknown and cannot be 
ascertained. We will retain the data element as proposed because an 
estimated date of birth is to be used in very restrictive circumstances 
when a parent's identity is not known, and not for an instance when a 
parent may be temporarily unavailable to provide the actual date of 
birth.
Section 1355.44(b)(2)(i) Child's Gender
    In paragraph (b)(2)(i), we require that the title IV-E agency 
report the child's gender. We did not receive any relevant comments on 
this data element, however, we made a minor revision to rename the data 
element ``Child's gender.''
Section 1355.44(b)(2)(ii) Child's Sexual Orientation
    In paragraph (b)(2)(ii), we require that the title IV-E agency 
report the child's self-reported sexual orientation for youth age 14 
and older. The title IV-E agency must report whether the child self-
identifies as ``straight or heterosexual,'' ``gay or lesbian,'' 
``bisexual,'' ``don't know,'' ``something else,'' or ``decline'' if the 
child declined to provide the information. The title IV-E agency must 
report ``not applicable'' for youth age 13 and under.
    Comment: We requested input on whether to require title IV-E 
agencies to collect LGBTQ-related data on youth in AFCARS. State title 
IV-E agencies, national advocacy/public interests groups and other 
organizations submitted comments on this topic. Commenters who 
supported collecting LGBTQ-related data were primarily advocacy 
organizations representing LGTBQ interests and generally asserted that 
such children/youth are over-represented in the child welfare system, 
but we do not have a full picture of their experiences in foster care. 
Supportive commenters also noted that such youth often have unique 
service needs, are at an increased risk for poor outcomes, are more 
likely to be placed in group settings and experience more placements. 
Many of these same commenters suggested that we require agencies to 
collect information about a child's gender identity or gender 
expression, or the assigned gender of the child or caregiver at birth, 
which would allow agencies to understand data about gender transition 
over the course of a child's life. One commenter suggested adding ``two 
spirited'' to address American Indian and Alaska Native children's 
identities. In contrast, other commenters, primarily state IV-E 
agencies and a national organization representing state child welfare 
agencies, suggested that we should not collect data related to sexual 
orientation in AFCARS. However, they expressed appreciation for ACF's 
interest in supporting and protecting LGBTQ youth in foster care and 
agreed that it is important to work toward a mechanism for collecting 
information related to a youth's sexual orientation, gender identity 
and expression. State commenters pointed to the following reasons for 
their objection to collecting the data: It is unlikely that the data 
will be reliable and consistent because the youth would self-report 
which could result in an undercount of LGBTQ children in foster care; 
the sensitive and private nature of the data and sexual identity issues 
and questioned the implications of having this information in a 
government record and it being used in a discriminatory way; and 
collecting the data may pose safety concerns because the LGBTQ 
community is still vulnerable to discrimination in many parts of the 
country. State commenters also expressed the importance of proper staff 
training to collect information for a data element on sexual 
orientation.
    Response: We were persuaded by the commenters who suggested we 
include a data element on a child's self-reported sexual orientation. 
In this final rule, we require title IV-E agencies to indicate whether 
the child self identifies as ``straight or heterosexual,'' ``gay or 
lesbian,'' ``bisexual,'' ``don't know,'' ``something else,'' or 
``decline'' if the child declined to report this information. These 
response options are consistent with the Youth Risk Behavior 
Surveillance System (YRBSS) questionnaire from the Centers for Disease 
Control and Prevention. We did not add a response option of ``two 
spirited'' to be consistent with the YRBSS. By requiring this 
information to be reported, we hope to move closer toward our goal to 
better support children and youth in foster care who identify as LGBTQ 
and ensure that foster care placement resources and services are 
designed appropriately to meet their needs. We are aware of situations 
where youth in foster care have been unsupported in their foster

[[Page 90535]]

care placements when their foster caregivers became aware of their 
sexual orientation. We did not add data elements requiring agencies to 
report information about a child's gender identity or gender 
expression, or the assigned gender of the child. We understand the 
concerns expressed by commenters; however, we anticipate that adding 
this data element is the first step in addressing the needs of this 
population, and also will assist title IV-E agencies in recruiting and 
training foster care providers in meeting the needs of these youth. In 
regard to the concern that youth should not be obligated to report this 
sensitive and private information to their caseworker, the youth must 
self-report this information and if they do not feel comfortable 
disclosing such information, they may decline to report the 
information. In regard to the concern about having this information in 
a government record, information in state and tribal systems is 
protected by confidentiality requirements. We require title IV-E 
agencies to report ``not applicable'' for children age 13 and under to 
align with other statutory case planning requirements that apply to 
youth age 14 and older, for example the child's case plan must be 
developed in consultation with the child age 14 and older and the 
child's case planning team (at the child's option) (sections 475(1)(B) 
and 475(5)(C)(iv) of the Act) and must document the child's rights, 
including the right to receive a credit report annually. Additionally, 
the child must sign an acknowledgement that he/she received these 
rights and that they were explained in an age appropriate way (section 
475A of the Act). We will provide technical assistance to agencies on 
collecting this information as needed.
Section 1355.44(b)(3) Reason To Know a Child Is an Indian Child as 
Defined in the Indian Child Welfare Act
    In paragraph (b)(3), we require that the state title IV-E agency 
report whether the state title IV-E agency researched whether there is 
reason to know that a child is an ``Indian Child'' as defined in ICWA 
by: Inquiring with the child, the child's biological or adoptive 
parents (if not deceased), the child's Indian custodian (if the child 
has one), and the child's extended family; indicating whether the child 
is a member or eligible for membership in a tribe; and indicating 
whether the domicile or residence of the child, parent, or the Indian 
custodian is on an Indian reservation or in an Alaska Native Village. 
This is similar to paragraph (i)(3) as proposed in the 2016 SNPRM, 
however we moved data elements related to ascertaining the tribal 
membership status of the child's parents to section 1355.44(c)(3) and 
(c)(4), and we added, in response to comments discussed later, a data 
element for inquiring with the child's extended family in paragraph 
(b)(3)(iv).
    Comment: Tribes, tribal organizations, child welfare organizations, 
and some states expressed that researching to determine whether a child 
may be an Indian child under ICWA is necessary to determine tribal 
status and for implementation of ICWA. Commenters stated that failure 
to research whether a child is an Indian child risks Indian children 
not being identified, and risks delay, expensive repetition of court 
proceedings, and placement instability if it is later discovered that a 
child is an Indian child under ICWA. Several states said that 
information on identifying whether a child is an Indian child as 
defined in ICWA is currently collected, although states varied in how 
they collect this information with some stating that it is collected 
through case narratives (electronic or paper). A state objected to 
expending resources required to report data in AFCARS that is already 
collected in case narrative. Several states and the national 
organization representing state child welfare agencies suggested 
simplifying the data element, stating that the primary focus should be 
on whether the agency made an inquiry, of whom, and whether that 
triggered notice per ICWA to a federally recognized tribe. One state 
suggested including a response option noting whether a particular data 
element is ``not applicable due to age or developmental ability.''
    Response: We did not make changes based on these comments to 
simplify the data elements. We retained the data elements to reflect 
requirements in BIA's regulation at 25 CFR 23.107(a). BIA's regulation 
requires state courts to ask each participant in an emergency, 
voluntary or involuntary child-custody proceeding whether the 
participant knows or has reason to know that the child is an Indian 
child. The data will help identify of which sources title IV-E agencies 
most often inquire about whether a child is an Indian child as defined 
in ICWA and for which sources title IV-E agencies may need resource or 
training to support inquiry. Further, we are not revising the response 
options to allow for a ``not applicable'' response option. The 
requirement is for the state title IV-E agency to report whether or not 
it inquired of the specific individuals listed, including the child, 
whether the child is a member of or eligible for membership in an 
Indian tribe. If the state title IV-E agency was unable to inquire with 
the child, the agency would respond ``no.''
    Comment: A state commented that these data elements ask for 
responses of ``yes'' or ``no'' that removes a level of specificity and 
obscures some incomplete data, such as there is no way to indicate when 
there are multiple tribes involved.
    Response: We understand the suggestion to be a technical issue for 
when states design their systems to report the required information and 
does not require a change in the final rule. We will work with state 
title IV-E agencies as they implement the final rule as needed.
    Comment: A state expressed that this data element doesn't 
explicitly note there is a single parent by indicating the response 
option of ``no'' and stated that the elements are gender specific.
    Response: We understand the suggestion to be a technical issue for 
when states design their systems to report the required information. We 
will work with state title IV-E agencies as they implement the final 
rule.
    Comment: One state suggested adding a data element that records 
when a tribe confirms that the child is a member or eligible for 
membership.
    Response: We did not revise the final rule in response to these 
suggestions. The final rule contains the data elements we believe are 
most critical in relation to children to whom ICWA applies.
    Comment: A tribe stated that the language ``inquired'' is vague and 
was confused what the agency is inquiring about in this section.
    Response: We modified the language of the data element to require 
the state title IV-E agency to indicate whether the state title IV-E 
agency researched whether there is a reason to know that the child is 
an Indian child as defined in ICWA. In each paragraph (b)(3)(i) through 
(b)(3)(vii), the state title IV-E agency must respond to these 
threshold questions that indicate whether the state title IV-E agency 
knows or has ``reason to know'' that a child is an Indian child and 
thus is subject to the protections under ICWA.
    Comment: Tribes and several national advocacy organizations 
suggested adding the phrase ``extended family'' to the list of persons 
to whom the state may have inquired stating that the extended family 
would have useful information regarding whether the child may be an 
Indian child.
    Response: We agree with the suggestion and added the requirement 
for the state title IV-E agency to also report whether it inquired with 
the

[[Page 90536]]

child's extended family in paragraph (b)(3)(iv).
    Comment: Tribes and organizations representing tribal interests 
recommended replacing ``on an Indian reservation'' with ``within a 
predominantly Indian community'' to be more inclusive to tribal 
communities. A state suggested adding individual data elements to 
inquire about the residences of each child, parent, and Indian 
custodian to determine whether any of them are domiciled on a 
reservation.
    Response: We did not revise the final rule in response to these 
suggestions because the data element in paragraph (b)(5)(vii) follows 
the language used in several sections of BIA's regulation (e.g., 25 CFR 
23.107 and 23.113) about the ``domicile or residence . . . on a 
reservation or in an Alaska Native village.''
Section 1355.44(b)(4) Application of ICWA and (b)(5) Court 
Determination That ICWA Applies
    In paragraph (b)(4), we require that the state title IV-E agency 
indicate whether it knows or has reason to know that a child is an 
Indian child as defined in ICWA. If the state title IV-E agency 
indicates ``yes,'' the state title IV-E agency must indicate the date 
it first discovered information that indicates that the child is or may 
be an Indian child as defined by ICWA in paragraph (b)(4)(i) and all 
federally recognized Indian tribes that are or may potentially be the 
Indian child's tribe(s) in paragraph (b)(4)(ii).
    In paragraph (b)(5), we require that the state title IV-E agency 
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), 
by indicating ``yes, ICWA applies,'' ``no, ICWA does not apply,'' or 
``no court determination.'' If the state title IV-E agency indicated 
``yes, ICWA applies,'' the state title IV-E agency must report the date 
that the court determined that ICWA applies in paragraph (b)(5)(i), and 
the Indian tribe the court determined to be the Indian child's tribe 
for ICWA purposes in paragraph (b)(5)(ii). This is similar to paragraph 
(i)(5) as proposed in the 2016 SNPRM.
    Comment: States commented that some state laws offer protections 
that exceed the minimum federal standards in ICWA. For example, some 
states require ICWA protections for children who are members of state 
recognized tribes, children who are descendants but not enrolled, or 
eligible for enrollment in a tribe, or for children who are members of 
tribes in Canada.
    Response: We encourage states to collect data they need to 
implement and evaluate state child welfare laws but only require 
collecting and reporting the ICWA related data through AFCARS as 
outlined in this rule.
    Comment: One commenter was concerned about reporting the court 
finding because the state may not know whether the tribe was asked or 
verified the child's membership status. Another commenter recommended 
that this element be removed because of uncertainty in how this element 
is different from asking if the state agency has reason to know the 
child is covered by ICWA.
    Response: We did not make any changes to the final rule to remove 
this data element. As we indicated in our rational in the 2016 SNPRM, 
data elements related to whether ICWA applies are essential because 
application of ICWA triggers procedural and substantive protections and 
this data will provide a national number of children in the out-of-home 
care reporting population to whom ICWA applies. However, we revised the 
final rule to reflect the language in the BIA's regulation at 25 CFR 
23.107, which does not require a court order but instead a ``court 
determination.'' We also revised the final rule for the state title IV-
E agency to indicate the date that the court determined that ICWA 
applies (paragraph (b)(5)(i)), rather than the date of the court order.
    Comment: One tribe suggested that the state title IV-E agency 
should be required to continue to report data that accurately reflects 
tribal involvement even when a court order does not include the 
information. The commenter felt this is important to capture to ensure 
that courts are diligent about engaging the tribe and avoid 
opportunities to misrepresent the true number of ICWA cases involved in 
State court.
    Response: We agree that tribal involvement is an essential 
component of ensuring the courts are diligent about engaging tribes. 
However, we did not add the suggested data element because we must 
balance the need to have the information with the burden and cost it 
places on state agencies to do so.
    Comment: One commenter asked whether ACF will compare the name of 
the tribe indicated in this data element, with the name of the tribe 
listed in other data elements, and whether it will be considered an 
error if the name of the tribe is different for each element. The 
commenter suggests that the data element instead ask whether the title 
IV-E agency verified that agency records regarding the name of the 
Indian tribe matched state records.
    Response: ACF will develop and issue error specifications in 
separate guidance and will work with state title IV-E agencies during 
implementation to address these types of technical issues with 
reporting the data.
Section 1355.44(b)(6) Notification
    In paragraph (b)(6), if a state title IV-E agency indicated ``yes'' 
to paragraph (b)(4) or indicated ``yes, ICWA applies'' to paragraph 
(b)(5), we require that the state title IV-E agency report: Whether the 
Indian child's parent or Indian custodian was sent 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); whether the 
Indian child's tribe(s) (if known) was sent legal notice of the child 
custody proceedings more than 10 days prior to the first child custody 
proceeding; and the name(s) of the tribe(s) sent notice. The first two 
requirements are similar to paragraph (i)(8) as proposed in the 2016 
SNPRM and the third requirement is the same as paragraph (i)(9) as 
proposed in the 2016 SNPRM.
    Comment: Two states suggested requiring the state to report the 
date that the tribe, mother, father, and Indian custodian were notified 
of the child's removal as that will provide information on whether the 
10 day legal notice requirements were met. One state commented that 
because they do not know 10 days in advance when a child is going to be 
removed that we instead require the state to report the date that the 
notice was sent. Another state suggested adding a data element asking 
when a notification was made to the tribe and when/if the tribe 
provided a response, and another state suggested removing notification 
elements until data exchanges are improved with the court to make this 
efficient. One state suggested removing the response option ``the 
child's Indian tribe is unknown'' and for the state to report the 
Indian child's tribe's name.
    Response: We did not make any changes to the final rule to remove 
the suggested response option or to require agencies to provide the 
date of notification. We determined that the actual date of the 
notification is not essential, but instead, as we proposed, whether the 
state sent the notice within the statutory 10 day notification 
requirement. We are retaining the response option ``the child's Indian 
tribe is unknown'' as we are aware that there may be instances where 
ICWA applies because a state knows or has reason to

[[Page 90537]]

know a child is an Indian child yet the name of the child's tribe is 
unknown. We proposed in the 2016 SNPRM and retained in the final rule 
the requirement for the state to indicate the name of the Indian 
child's tribe that was sent proper legal notice more than 10 days prior 
to the first child custody proceeding in accordance with 25 U.S.C. 
1912. We have, however, removed the requirement for the state title IV-
E agency to report whether the state title IV-E agency replied with 
additional information that the Indian child's tribe(s) requested, if 
such a request was made.
    Comment: A state noted the proposed data element does not 
accommodate a situation when there are potentially multiple tribes that 
were sent the notification.
    Response: We are retaining the requirement in the final rule for 
the state to indicate whether the Indian child's tribe(s) was given 
proper legal notice more than 10 days prior to the first child custody 
proceeding in accordance with 25 U.S.C. 1912(a). We will provide 
technical assistance to states that need assistance in reporting 
multiple tribes.
    Comment: The national organization representing state child welfare 
agencies supports the notification data elements that align with ICWA 
mandates. They noted that states have different methods to notify the 
parties, such as through a court process, the state's attorney 
general's office, or by the state agency. The organization recommends 
simplifying the data elements to require the agency to report to whom 
the agency gave proper notice, i.e., parents, custodians, and tribes.
    Response: We understand the suggestion to be a technical issue for 
when states design their systems to collect the required information 
that would not require a change to the final rule. States may design a 
drop down menu or another mechanism appropriate to their system to 
report the notice requirements as long as the state can report whether 
the state sent the notice to the mandated parties more than 10 days 
prior to the proceeding.
    Comment: A tribe recommended that we also require states to report 
that the state sent the notifications when parental rights will be 
terminated for an Indian child.
    Response: We are retaining the notification requirements for the 
state to report whether it provided the 10 day notifications in 
reference to the first child custody proceeding. The BIA defines child-
custody proceeding for ICWA purposes to mean and include any action, 
other than an emergency proceeding, that may culminate in one of the 
following outcomes: Foster-care placement, termination of parental 
rights, pre-adoptive placement, and adoptive placement. Therefore, if 
the first child custody proceeding is in reference to a TPR, the agency 
must report that information to AFCARS.
    Comment: Two organizations suggested that we require states to 
report whether a state court or agency used the list of tribes 
published by the Bureau of Indian Affairs to notify a tribe of the 
first child custody hearing.
    Response: We determined that it is not essential for states to 
specify in AFCARS whether they sent the notice to the tribe as it is 
listed in the BIA publication. As we indicated in the preamble to the 
2016 SNPRM, the timing of the notice is an essential procedural 
protection provided by ICWA. Hence, we proposed and issued in the final 
rule the requirement for states to report whether proper legal notice 
of the child custody proceedings was sent more than 10 days prior to 
the first child custody proceeding. This is consistent with the 
requirements under the ICWA statute at 25 U.S.C. 1912(a) and the BIA 
regulations at 23.11(c).
    Comment: Two organizations suggested that we require the state to 
report whether legal notice was provided for the first child custody 
hearing to the same grandparents and other adult relatives who were 
notified about a child's placement into foster care as required by 
title IV-E.
    Response: We tailored the ICWA data elements that we proposed and 
issued in the final rule to be consistent with the requirements under 
the ICWA statute and the BIA regulations, and relative notification of 
the first child custody hearing is not required. However, we added a 
requirement in 1355.44(b)(3)(iv) for the state to report whether the 
state title IV-E agency researched whether there is a reason to know 
that the child is an Indian child as defined in ICWA by indicating 
whether the state agency inquired with the child's extended family. We 
believe this could respond to the intent of the commenter's suggestion, 
which is to ensure that an Indian child's relatives are made aware when 
a child in their family is placed into foster care.
    Comment: We received several comments regarding the proposed data 
element requiring the state to report in instances where the tribe(s) 
requested additional information, whether the state title IV-E agency 
replied with the additional information that the Indian tribe(s) 
requested. One state commented that the data element is unclear and 
asked whether the timeframe was at any time during the six month report 
period or whether it only applied to the first child custody 
proceeding. Another state commented that it does not collect data on 
whether the tribe(s) requested additional information or whether the 
agency replied to the request. The national organization representing 
state child welfare agencies also recommended removing the element 
because they did not believe the proposed data file element provides 
essential information on children for whom ICWA applies. A tribe 
recommended adding the date of the tribal request for additional 
information and the date the agency responded to the tribe's request 
for additional information.
    Response: We agree with the suggestions to remove the data element 
in proposed (i)(10) in the 2016 SNPRM that required the state to 
indicate whether the state title IV-E agency replied with the 
additional information that the Indian tribe(s) requested. We have 
removed this data element from the final rule.
Section 1355.44(b)(7) Request To Transfer to Tribal Court and (b)(8) 
Denial of Transfer
    In paragraph (b)(7), if the state title IV-E agency indicated 
``yes'' to paragraph (b)(4) or indicated ``yes, ICWA applies'' to 
paragraph (b)(5), we require that the state title IV-E agency report 
whether either parent, the Indian custodian, or Indian child's tribe 
requested, orally on the record or in writing, that the state court 
transfer the foster care or termination of parental rights proceeding 
to the jurisdiction of the child's tribe at any point during the report 
period. This is similar to paragraph (i)(6) as proposed in the 2016 
SNPRM, except that the language was updated to be consistent with 25 
CFR 23.115.
    In paragraph (b)(8), if the state title IV-E agency indicated 
``yes'' to paragraph (b)(7), we require that the state title IV-E 
agency report whether the state court denied the request to transfer 
the case to tribal jurisdiction and if so, the reason for the denial 
from a list of three options, as outlined in ICWA statute: (1) Either 
of the parents objected to transferring the case to the tribal court; 
or (2) the tribal court declined the transfer to the tribal court; or 
(3) the state court determined good cause exists for denying the 
transfer to the tribal court. This is similar to paragraph (i)(7) as 
proposed in the 2016 SNPRM, except that we updated the language to be 
consistent with 25 CFR 23.118.

[[Page 90538]]

    Comment: A tribe commented that ``good cause'' findings should be 
made as outlined in the BIA's Guidelines and suggested that we add a 
data element that captures the specific ``good cause'' finding used to 
decline each transfer.
    Response: We have not made any changes to the final rule to 
incorporate recommendations for the noted BIA's Guidelines. Rather in 
the final rule, if the state court determined that transfer is not 
appropriate, the state must report which reason from among a list of 
three options, as outlined in ICWA statute (25 U.S.C. 1911(b)) and 
BIA's regulation at 25 CFR 23.117: (1) Either of the parents objected 
to transferring the case to the tribal court; or (2) the tribal court 
declined the transfer to the tribal court; or (3) the state court 
determined good cause exists for denying the transfer to the tribal 
court.
    Comment: The national organization representing state child welfare 
agencies supports capturing data from the court order indicating a 
transfer of the case to the tribal court of the Indian child's tribe 
and an indication on the reason for denial (when applicable). However, 
they suggested simplifying the data elements to ask only whether a 
tribe requested to transfer the case to tribal court and if yes, 
whether the transfer was ordered. We also received suggestions from 
states on revising the element. One state recommended changing the data 
element to capture the most recent transfer request regardless of when 
the request occurred as long as it is during the current removal 
episode.
    Response: ACF is not persuaded by the comments to revise the data 
elements regarding transferring cases from state court to tribal 
jurisdictions. We are retaining the two proposed data elements with 
modifications to be consistent with the BIA regulation at 25 CFR 
23.115. That regulation states that the parents, Indian custodian, or 
the Indian child's tribe may request, orally on the record or in 
writing, that the state court transfer the child custody proceeding to 
tribal jurisdiction. It does not require that the request be contained 
in a court order. Therefore we are removing the requirement for the 
agency to report only when there is a specific court order requesting a 
transfer of jurisdiction and adopting the same BIA regulatory language 
so that we are consistent. Further, we clarified the instructions for 
this element in the final rule to require the state to report if there 
was a request at any point during the report period.
    Comment: Several organizations representing tribal interests 
suggested that we require the state to report the date that the state 
court approved transfer of jurisdiction to the tribe.
    Response: We appreciate the suggestion and understand the value for 
determining timely implementation of ICWA and case transfer between 
jurisdictions, however, we did not change the final rule to add this 
data element. Rather, we retained the two transfer data elements we 
proposed in the 2016 SNPRM and modified them to be consistent with the 
BIA regulations. As we indicated in the 2016 SNPRM, we require two 
transfer data elements to provide an understanding of how many children 
in foster care with ICWA protections are or are not transferred to the 
Indian child's tribe, the reasons why a state court did not transfer 
the case, and aid in identifying tribal capacity needs and issues that 
may prevent tribes from taking jurisdiction.
    Comment: One tribe suggested that the phrase ``a court order'' be 
expanded to include ``or other entry of the Court'', as at times the 
state court may not enter an order transferring the case at the same 
hearing as when a petition to transfer is submitted to a court.
    Response: We have removed the term ``court order'' from paragraphs 
(b)(7) and (b)(8) to be consistent with the BIA regulation at 25 CFR 
23.115 through 23.117. That regulation states that the parents, Indian 
custodian, or the Indian child's tribe may request, orally on the 
record or in writing, that the state court transfer the child custody 
proceeding to tribal jurisdiction. The BIA regulation does not require 
that the request or the order for transfer be contained in a court 
order.
Section 1355.44(b)(9) Child's Race
    In paragraph (b)(9), we require that the title IV-E agency report 
the race of the child. The options are: American Indian or Alaska 
Native, Asian, Black or African American, Native Hawaiian or Other 
Pacific Islander, White, declined, abandoned, and unknown because the 
child or parent or legal guardian does not know or is unable to 
communicate the child's race, or at least one race of the child.
    Comment: Two states and one other commenter did not agree that we 
should include ``race-abandoned'' as a response option in this data 
element because it is not a race. One commenter also noted that 
including ``race-abandoned'' and ``race-unknown'' as response options 
are confusing.
    Response: We provide the agency with the option of not reporting a 
specific race in two situations when the race is not known: When the 
child is abandoned and therefore the race of the child is unknown 
(race-abandoned) or that the race is unknown because the child or 
parent or legal guardian does not know or is unable to communicate the 
child's race (race-unknown). The response option of race-abandoned 
allows us to differentiate when there is no parent available to provide 
race information from when the child or parent does not know or is 
unable to communicate it. A child's race can be categorized as unknown 
only if a child or his parents do not actually know the child's race. 
If the title IV-E agency has not asked the child or parent for the 
child's race, the agency may not report unknown as the response. 
Further, it is acceptable for the child to identify that he or she is 
multi-racial, but does not know one of those races. In such cases, the 
title IV-E agency must indicate the racial classifications that apply 
and also indicate that a race is unknown.
    Comment: Two commenters representing tribal interests suggested 
that we amend the racial category of American Indian or Alaska Native 
to include whether the child has origins in any of the original peoples 
of North or South America and if yes, whether the child is a member of, 
or eligible for, membership in a federally recognized Indian tribe. 
Both commenters also recommended that we delete the language, 
``maintains tribal affiliation and community attachment'' in the race 
definition of American Indian or Alaska Native.
    Response: The language used reflects the OMB Revised Standards for 
the Classification of Federal Data on Race and Ethnicity, standardizing 
federal data collection. We agree that requiring state title IV-E 
agencies to collect and report data that could identify a child as an 
Indian child as defined in ICWA is of paramount importance. Therefore, 
while we did not revise this data element, we require additional 
information on the child's tribal membership or eligibility for tribal 
membership in paragraphs (b)(3), (b)(4), and (b)(5).
Section 1355.44(b)(10) Child's Hispanic or Latino Ethnicity
    In paragraph (b)(10), we require that the title IV-E agency report 
the Hispanic or Latino ethnicity of the child. The agency must respond 
``yes,'' ``no,'' ``declined,'' ``abandoned,'' or ``unknown'' because 
the child, parent or legal guardian does not know or is unable to 
communicate the child's ethnicity.
    Comment: One commenter suggested that we expand the definition of 
``abandoned'' to include circumstances where the child was left with 
others and the identity of the parent(s) is known,

[[Page 90539]]

but the parent(s) has failed to return and therefore the child's 
Hispanic or Latino ethnicity is not known.
    Response: We have provided a specific definition of abandoned as 
follows: The child was left alone or with others and the identity of 
the parent(s) or legal guardian(s) is unknown and cannot be 
ascertained. We will retain the data element as proposed as it is to be 
used in very limited circumstances when a parent's identity is not 
known, and therefore not available to identify the child's ethnicity, 
and not any time a parent may be temporarily unavailable.
Section 1355.44(b)(11) and (b)(12) Health Assessment Date and Timely
    In paragraphs (b)(11) and (12), we require the title IV-E agency to 
report whether the child had a health assessment during the current 
out-of-home care episode, and if so, the date of the child's most 
recent health assessment and if it was within the timeframes 
established by the title IV-E agency.
    Comment: State title IV-E agencies and a national organization 
representing state child welfare agencies raised concerns about 
collecting information on timeliness and frequency of health 
assessments. They indicated that health assessment requirements would 
differ based on the agency's schedule and individual child 
circumstances, such as age and medical condition; therefore, it would 
be difficult to compare data across title IV-E agencies. They stated 
that to answer the question of timeliness, the system must know the 
assessment schedule and dates of assessments, doubling the data entry 
requirements. States suggested that this information would be better 
assessed as part of a qualitative assessment that focuses on child 
well-being outcomes or case reviews, rather than a national data set. 
One state recommended that we require agencies to report health 
assessment information according to an established federal timeline.
    Response: We appreciate the comments, but did not remove the 
requirement for reporting on health assessments because we still 
believe it is important to ensure that the title IV-E agency is 
identifying and addressing the health needs of children in foster care. 
As we indicated in the 2015 NPRM, collecting this information will 
allow us to ensure children in foster care are receiving health 
assessments in accordance with the title IV-E agency's established 
schedule per the statutory requirements in section 422(b)(15)(A) of the 
Act. It also provides us an opportunity to ensure that the child's 
health needs are identified, reviewed, and addressed by a medical 
professional through routine health assessments. These data elements 
may also serve as a proxy for other well-being indicators. We also did 
not impose a requirement that title IV-E agencies report health 
assessment information according to an established federal timeline 
because section 422(b)(15)(A) does not provide ACF with the authority 
to impose a federal timeframe on title IV-E agencies. Instead, agencies 
describe and adhere to the timeframes described in their Child and 
Family Services Plan.
    Comment: One national advocacy/public interest group supported 
including this data, but suggested clarifying the language to read 
``timely health assessment as defined by the state.'' Another national 
advocacy/public interest group pointed out that the term ``health 
assessment'' has varying implications and suggested that ACF provide 
guidance on the difference between health screenings and health 
evaluations.
    Response: In reference to the suggestion to clarify that the 
assessments are timely based on title IV-E agency specific definitions, 
paragraph (b)(11) asks whether the date reported in paragraph 
(b)(12)(ii), if applicable, is ``within the timeframes for initial and 
follow-up health screenings established by the title IV-E agency, as 
required by section 422(b)(15)(A) of the Act.'' Hence, the information 
that the title IV-E agency indicates should be in the context of this 
title IV-B plan requirement regarding the ongoing oversight of health 
care services, with which agencies are already complying. The title IV-
E agency must report the most recent health screenings that are 
conducted according to the agency's established schedule. ACF provided 
guidance in ACF-CB-PI-10-11 that agency schedules for initial and 
periodic health screenings ``should mirror or incorporate elements of 
existing professional guidelines for physical, mental, and dental 
health screenings and standards of care.'' In regard to the request to 
distinguish between a health screening and a health evaluation, we will 
provide technical assistance to states if they need assistance in 
determining how to report on a child's health assessment, which could 
be either a screening or an evaluation, depending on the agency's 
process.
    Comment: State title IV-E agencies felt that the language of the 
data elements was vague and questioned how to report whether a health 
assessment is ``timely'' based on the agency's ``own established 
schedule.'' Several states asked whether these data elements included 
all initial or follow-up assessments during the out-of-home care 
episode and pre-placement screenings.
    Response: We appreciate the commenters' questions and revised the 
regulation to clarify the instructions, based on the commenters' 
concerns. We revised the regulation to require first that the agency 
report whether the child had a health assessment during the current 
out-of-home care episode in paragraph (b)(11)(i). The assessment could 
include an initial health screening or any follow-up health screening 
per section 422(b)(15)(A) of the Act. If so, the title IV-E agency must 
report the date the child's most recent health assessment during the 
out-of-home care episode and whether it is within the timeframes for 
initial and follow-up health screenings established by the title IV-E 
agency per section 422(b)(15)(A) of the Act (paragraphs (b)(11)(ii) and 
(b)(12)). This revision is to make clear that the agency is to report 
on the timeliness of the most recent health assessment. If the agency 
indicates that there was no health assessment done, there is no 
requirement to report the date and timeliness of the assessment.
    Comment: A state title IV-E agency asked how a blank response is 
distinguished from missing data and how to report if a child is not in 
care long enough to receive a health assessment or the timeliness 
straddles reporting periods.
    Response: In reference to the blank response query, consistent with 
ACF's longstanding practice, ``blank'' is a valid response option only 
when specified in individual data elements. In paragraph (b)(11)(i), 
the agency must report either ``yes'' or ``no;'' ``blank'' is not an 
appropriate response and is considered a missing data error under 
section 1355.46(b)(1). ``Blank'' is an appropriate response for 
paragraphs (b)(11)(ii) and (b)(12) only if the response to paragraph 
(b)(11)(i) is ``no.'' Thus, if a child has not been in foster care long 
enough to have an assessment, the agency would report no in paragraph 
(b)(11)(i) and blank for paragraphs (b)(11)(ii) and (b)(12).
    Comment: Several national advocacy/public interest groups suggested 
additional data elements, such as specific dates of the initial health 
assessment; initial dental evaluations and other preventative dental 
care; whether children in foster care are receiving Early and Period 
Screening, Diagnosis, and Treatment (EPSDT) services under Medicaid; 
and for title IV-E agencies to report on each aspect of the title IV-B 
Health Care

[[Page 90540]]

Coordination and Oversight Plan under section 422(b)(15)(A) of the Act 
(for example, how children's medical information will be updated, steps 
to ensure continuity of health services, and protocols for the 
oversight of prescription medicines).
    Response: As we indicated in the 2015 NPRM, collecting health, 
behavioral or mental health related information will allow us to ensure 
children in foster care are receiving health assessments in accordance 
with the title IV-E agency's established schedule per the statutory 
requirements in section 422(b)(15)(A) if the Act. Therefore, we will 
not require agencies to report additional health assessment information 
because we do not have a need for those details at the national level.
Section 1355.44(b)(13) Health, Behavioral or Mental Health Conditions
    In paragraph (b)(13), we require the title IV-E agency to report 
whether the child was diagnosed by a qualified professional as having 
one or more health, behavioral or mental health conditions from a list 
of eleven conditions prior to or during the child's current out-of-home 
care episode. If so, the agency must report whether it's an existing 
condition or a previous condition (a previous diagnoses that no longer 
exists as a current condition). The title IV-E agency must also report 
if the child had an exam or assessment, but none of the conditions 
apply, or if the agency has not received the results of the exam or 
assessment. When the child has not had an exam or assessment, the 
agency must indicate so.
    Comment: State title IV-E agencies, a national organization 
representing state child welfare agencies, and many other national 
advocacy/public interest groups indicated that the qualifying 
disabilities of the proposed element IDEA Qualifying Disability and the 
conditions for health, behavioral or mental health conditions 
overlapped which would confuse workers and lead to inaccurate and 
misleading data at a national level. Some national advocacy/public 
interest groups also suggested including specific additional 
conditions, such as oppositional defiant disorder, major depressive 
disorder, attention deficit hyperactivity disorder, and traumatic brain 
injury.
    Response: We were persuaded by the number of commenters who 
expressed concern about the overlapping health, behavioral or mental 
health conditions and the IDEA qualifying disabilities and revised the 
final rule so that there is one element that addresses a child's 
health, behavioral or mental health conditions. We removed the data 
element IDEA Qualifying Disability in the final rule. We combined some 
of the conditions we proposed for the IDEA Qualifying Disability data 
element with the Health, behavioral or mental health conditions that we 
modified to update with current common diagnoses suggested by several 
commenters, separated out conditions that are currently reported 
together, as suggested by commenters, and revised to more closely align 
with definitions for diagnoses from the National Institutes of Health 
(NIH). We describe these revisions below. We believe that this revised 
list will provide us with better data on the child's health 
characteristics and meet the requirement of section 479A(a)(7)(A)(v) of 
the Act regarding reporting clinically diagnosed conditions for certain 
children in foster care.
    Paragraph (b)(13)(i) is ``Intellectual disability'' '' and is 
unchanged from the 2015 NPRM because we did not receive comments 
specifically asking for a revision to this definition.
    Paragraph (b)(13)(ii) is ``Autism spectrum disorder'' that we 
combined from the IDEA qualifying disability data element proposed in 
the 2015 NPRM and revised to be more closely aligned with the 
definition from the NIH Neurological Disorders and Stroke.
    Paragraph (b)(13)(iii) is ``Visual impairment and blindness'' that 
we combined from the IDEA qualifying disability and Health, behavioral 
or mental health conditions data elements proposed in the 2015 NPRM.
    Paragraph (b)(13)(iv) is ``Hearing impairment and deafness'' that 
we combined from the IDEA qualifying disability and Health, behavioral 
or mental health conditions data elements proposed in the 2015 NPRM.
    Paragraph (b)(13)(v) is ``Orthopedic impairment or other physical 
condition'' that we combined from the IDEA qualifying disability and 
Health, behavioral or mental health conditions data elements proposed 
in the 2015 NPRM.
    Paragraph (b)(13)(vi) is ``Mental/emotional disorders'' that we 
combined from the IDEA qualifying disability and Health, behavioral or 
mental health conditions data elements proposed in the 2015 NPRM.
    Paragraph (b)(13)(vii) is ``Attention deficit hyperactivity 
disorder'' that we included as a separate condition, based on comments 
suggesting that it not be included with another condition. The 
definition is based on the definition from the NIH National Institutes 
of Mental Health.
    Paragraph (b)(13)(viii) is ``Serious mental disorders'' that we 
included as a separate condition that comprises several disorders 
previously proposed under the IDEA qualifying disability and Health, 
behavioral or mental health conditions data elements. The definition is 
also based in part on the definitions for bipolar disorder and 
psychotic disorders from the NIH National Library of Medicine.
    Paragraph (b)(13)(ix) is ``Developmental delay'' that we combined 
from the IDEA qualifying disability data element proposed in the 2015 
NPRM and revised to include delays related to language/speech and motor 
skills.
    Paragraph (b)(13)(x) is ``Developmental disability'' and is 
unchanged from the 2015 NPRM because it is based on statute.
    Paragraph (b)(13)(xi) is ``Other diagnosed condition'' that we 
combined from several conditions proposed in the IDEA qualifying 
disability and Health, behavioral or mental health conditions data 
elements proposed in the 2015 NPRM.
    Comment: A national organization representing state child welfare 
agencies and a few states commented that reporting over time whether a 
child's condition is existing, previous, or does not apply could make 
the data file cumbersome, confuse aggregate data at the federal level, 
and place burden on workers who may not have the training or expertise 
on detailed, technical health care information. They felt that what was 
collected in AFCARS for conditions is reasonable because it informs the 
relevant issues at a high level. They made suggestions for other 
mechanisms to report the data, such as data sharing agreements with 
other agencies.
    Response: We have not removed the requirement for agencies to 
report whether a child's condition is existing, previous, or does not 
apply. We continue to believe, as we stated in the 2015 NPRM, that it 
is important to capture comprehensive information on a child's 
diagnosed health, behavioral and mental health conditions beyond the 
current AFCARS report period, which this data element will allow. 
Collecting conditions for which the child was previously diagnosed, but 
do not exist as current diagnoses, will provide increased opportunities 
for analysis regarding the health and service needs of children in out-
of-home care, which current AFCARS data does not allow. We will provide 
technical assistance on reporting this information as needed.
    Comment: Two states asked for clarification as to who is considered 
a ``qualified professional.''

[[Page 90541]]

    Response: As stated in the 2015 NPRM preamble (80 FR 7149), a 
qualified professional is determined by applicable laws and policies of 
the state or tribal service area and may include a doctor, 
psychiatrist, or, if applicable in the state or tribal service area, a 
licensed clinical psychologist or social worker. This is consistent 
with current AFCARS practice.
    Comment: Two states were confused by the response options on 
whether a qualified professional has conducted an exam or assessment 
and recommend we only provide two response options for the agency to 
indicate whether or not the child has a diagnosed condition, or if it's 
unknown.
    Response: We did not revise the final rule based on the comments to 
allow for an ``unknown'' response option. We intentionally did not 
propose a response option of ``unknown'' because it is too broad for a 
meaningful analysis and has a high potential to be overused. These 
responses as well as the response options for previous or existing 
condition are designed to give us information regarding a child's 
health, behavioral or mental health conditions that vary over time 
without having to track other more complicated historical information 
such as start and end dates of conditions. We believe that this will 
provide us with better data on the child's health characteristics and 
meet the requirement of section 479A(a)(7)(A)(v) of the Act regarding 
reporting clinically diagnosed conditions for certain children in 
foster care. Additionally, we will provide technical assistance on 
reporting this information as needed.
    Comment: Six states sought clarification on when to mark conditions 
as ``previous.''
    Response: The agency reports the response option of ``previous'' 
when a child was diagnosed for a condition that no longer exists as 
decided by a medical professional.
    Comment: One state suggested that agencies should collect start and 
end dates of diagnoses to allow for a more robust analysis and would 
give agencies the ability to determine when a diagnosis was applicable 
if the diagnosis changes during the report period.
    Response: We did not make changes to the final rule based on this 
comment as the response options of existing condition, previous 
condition, and does not apply will provide us an adequate history on 
the occurrence of a child's conditions at the federal level without the 
dates of diagnosis.
Section 1355.44(b)(14) School Enrollment, (b)(15) Educational Level, 
and (b)(16) Educational Stability
    In paragraph (b)(14), the title IV-E agency must report whether the 
child is a full-time student at and enrolled in (or in the process of 
enrolling in) elementary or secondary education, or is a full or part-
time student at and enrolled in post-secondary education or training, 
or college, or whether the child is not enrolled in any school setting. 
We made a minor revision to this data element in the final rule to 
include part-time students in the response options ``post-secondary 
education or training'' or ``college.''
    In paragraph (b)(15), the title IV-E agency must report the highest 
educational level from kindergarten to college or post-secondary 
education/training completed by the child as of the last day of the 
report period. We made a minor change to this data element in the final 
rule to add a response option of ``GED'' if the child has completed a 
general equivalency degree or other high school equivalent.
    In paragraph (b)(16), the title IV-E agency must report if the 
child is enrolled or is in the process of enrolling in a new elementary 
or secondary school prompted by an initial placement after entry into 
foster care or a placement change during the report period and if so, 
reason(s) for the change in enrollment (paragraphs (b)(16)(i) through 
(b)(16)(vii)).
    Comment: In general, a national organization representing state 
child welfare agencies and states expressed concerns with state title 
IV-E agencies gathering data elements related to educational 
information because they stated it would create a burden for workers 
and would not result in accurate or useful data at the federal level 
since educational information, such as enrollment information, varies 
among jurisdictions and states. Three state commenters suggested 
forming a data exchange with the Department of Education instead of 
state title IV-E agencies collecting education information proposed 
through AFCARS.
    Response: We considered the comments concerned about the increased 
burden, however we are retaining the educational data elements related 
to school enrollment, educational level, and educational stability 
because, as we stated in the 2015 NPRM, these data elements address the 
requirements in section 471(a)(30) of the Act relating to an assurance 
for title IV-E eligible children being full-time elementary or 
secondary school students or completed secondary school, section 
475(1)(C)(ii) of the Act relating to the child's health and education 
records and grade level performance while in foster care, and section 
475(1)(G) of the Act relating to the case plan requirement to develop 
an educational stability plan for a child in foster care. We have 
learned through AFCARS Assessment Reviews and technical assistance that 
several title IV-E agencies already collect information on school 
enrollment, the highest level of education completed, and the reasons 
for changes in school enrollment. These data elements provide important 
information about this issue. As we explained in the 2015 NPRM, we 
believe that it is beneficial to collect information on the highest 
educational achievement of the child so that we can analyze trends in 
the relationship between a child's age and his or her educational 
achievement. Information on a child's recently completed grade level 
measures educational progress and aligns with statutory changes made by 
the Fostering Connections to Success and Increasing Adoptions Act of 
2008 (Pub. L. 110-351). Collecting information on the reasons title IV-
E agencies determine that remaining in the school of origin or a 
previous school is not in the child's best interest will help to 
identify and address barriers to educational stability after an initial 
placement into foster care or a change in living arrangements. In 
reference to the suggestion for a data exchange with the Department of 
Education to collect a child's education information rather than 
collect it through AFCARS, we determined that approach would not yield 
consistent information. The Department of Education collects different 
and varied data from states, none of which is at the child level, as is 
the case with AFCARS. We will provide technical assistance as needed to 
title IV-E agencies to ensure accuracy of reporting.
    Comment: In response to paragraph (b)(14), a national organization 
representing state child welfare agencies and state title IV-E agencies 
expressed concerns about consistency in reporting school enrollment 
information due to variations in the definitions of elementary, 
secondary, post-secondary education or training, college, not school-
age, and not enrolled among jurisdictions. They suggested removing the 
data element. Other states and national advocacy/public interest groups 
suggested reporting children enrolled in any ``formal education 
program'' to capture children in half and full-day kindergarten 
programs in

[[Page 90542]]

states where compulsory attendance begins at first grade.
    Response: We did not remove the requirement for agencies to report 
on student enrollment or make changes to the definitions of 
``elementary'' or ``secondary'' based on the comments because the data 
element is based on the statutory requirement in section 471(a)(30) of 
the Act. That provision specifies that title IV-E agencies must assure 
that each child who has attained the minimum age for compulsory school 
attendance under state law and with respect to whom there is 
eligibility for a payment under the title IV-E plan is a full-time 
elementary or secondary school student or has completed secondary 
school. The provision also defines an ``elementary or secondary school 
student'' as ``the child is (A) enrolled (or in the process of 
enrolling) in an institution which provides elementary or secondary 
education, as determined under the law of the State or other 
jurisdiction in which the institution is located; (B) instructed in an 
elementary or secondary education program in accordance with a home 
school law of the State or other jurisdiction in which the home is 
located; (C) in an independent study elementary or secondary education 
program, in accordance with the law of the State or other jurisdiction 
in which the program is located, that is administered by the local 
school or school district; or (D) incapable of attending school on a 
fulltime basis due to the medical condition of the child, which 
incapability is supported by regularly updated information in the case 
plan of the child.''
    Comment: In response to paragraph (b)(14), state title IV-E 
agencies and national advocacy/public interest groups suggested that 
agencies report ``part-time'' post-secondary education.
    Response: We agreed with the commenters to include ``part-time'' 
enrollment in addition to full-time and revised the definitions for the 
response options ``post-secondary education or training'' and 
``college'' to include part-time enrollment. Now, the regulation 
specifies that enrollment in ``post-secondary education or training'' 
refers to full or part-time enrollment in any post-secondary education 
or training, other than an education pursued at a college or university 
and enrollment in ``college'' refers to a child that is enrolled full 
or part-time at a college or university. We understand that many older 
foster youth who are enrolled in post-secondary education or training 
or college attend part-time and therefore, we wish to capture both 
enrollment options for these older youth.
    Comment: In response to paragraph (b)(15), three states expressed 
concern with the proposal to report the highest educational level 
completed by the child as of the last day of the report period, noting 
that a child who is in kindergarten on the last day of the report 
period will be reported as ``not school-age.''
    Response: We understand the commenter's concern, however, we are 
retaining the requirement for the agency to report the highest 
educational level completed by the child as of the last day of the 
report period. We are not seeking information on the child's current 
educational level. As we explained in the 2015 NPRM, we proposed to 
collect information on the child's highest educational level which 
measures educational progress and aligns with section 475(1)(C)(ii) of 
the Act relating to the child's health and education records and grade 
level performance while in foster care.
    Comment: In response to paragraph (b)(15), national advocacy/public 
interest groups suggested additions to paragraph (b)(15) that included, 
adding early childhood response options, adding general equivalency 
degree (GED) or other high school equivalent, and adding different 
levels of higher education to include one year and two year degrees/
certificates.
    Response: We agree with the commenters who recommended adding GED 
as a response option, so we added it to the regulation which now reads: 
``Indicate ``GED'' if the child has completed a general equivalency 
degree or other high school equivalent.'' We did not add response 
options recommended by other comments because we do not need the 
suggested detail about different levels of early childhood education or 
higher education for children in foster care at the national level.
    Comments: In response to paragraph (b)(16), a national organization 
representing state child welfare agencies and three state title IV-E 
agencies suggested removing the data element on educational stability 
stating that the data would be unreliable and not useful because the 
reasons for new school enrollments are often more complex than the six 
response options presented. They also suggested that a child's 
educational stability would be better assessed through a qualitative 
review and recommended that we collect only whether a change in a 
child's school occurred. One commenter was concerned that due to the 
complexity of this data element, workers would be likely to select 
``other,'' reducing the accuracy of the responses.
    Response: We did not make changes to the regulation based on these 
comments because we continue to believe that a child's educational 
stability is an important issue and this data element is a step to 
gathering more information on this issue. As we stated in the 2015 
NPRM, we seek this information because it will conform to section 
475(1)(G) of the Act which is a case plan requirement to ensure the 
development of a plan for the educational stability of a child in 
foster care. We will provide technical assistance to title IV-E 
agencies as needed to ensure that this data element is reported 
accurately.
    Comment: In response to paragraph (b)(16), national advocacy/public 
interest groups recommend requiring agencies to report all school 
changes during a report period. They also recommended adding more data 
elements to gather information about whether or not school changes were 
in the best interests of a child, including whether the placement 
supports the child's permanency plan, whether it was a school 
discipline transfer, and whether there was a lack of living options 
near the original school.
    Response: We are retaining the language proposed in the 2015 NPRM 
in the final rule and did not add the response options recommended by 
the commenters for several reasons. We do not need details at the 
national level about multiple school changes during a report period or 
other more detailed reasons for a school change. As we indicated in the 
2015 NPRM, collecting information on the reasons title IV-E agencies 
determine that remaining in the school of origin or a previous school 
is not in the child's best interest will help to identify and address 
barriers to educational stability after an initial placement into 
foster care or a change in living arrangements. We believe the response 
options in paragraphs (b)(16)(i) through (b)(16)(vii) will allow us to 
identify those barriers and to determine ways to best address them.
Section 1355.44(b)(17) Pregnant or Parenting
    In paragraph (b)(17)(i), the title IV-E agency must report whether 
the child is pregnant as of the end of the report period. We revised 
this data element in the final rule. In the 2015 NPRM, we proposed to 
require the agency to report whether the child is or was previously 
pregnant.
    In paragraph (b)(17)(ii), the title IV-E agency must report whether 
the child has ever fathered or bore a child. We revised this data 
element in the final rule. In the 2015 NPRM, we proposed to

[[Page 90543]]

require the agency to report the number of children of the minor 
parent.
    In paragraph (b)(17)(iii), the title IV-E agency must report 
whether the child and his/her child(ren) are placed together in foster 
care. We revised this data element in the final rule. In the 2015 NPRM, 
we proposed to require the agency to report the number of children 
living with the minor parent.
    Comment: Several states and a national organization representing 
state child welfare agencies generally objected to collecting 
information on children in foster care who are parents or pregnant for 
various reasons including: It is relevant in the NYTD (see 45 CFR 
1356.83(g)(52)) not AFCARS; it will only be applicable to a small 
number of children and will not result in accurate reporting; it could 
impose an extensive data collection burden on case workers since there 
is no minimum age imposed on who the agency is to report, it is 
difficult to know a pregnancy begin date, and it would inappropriately 
apply to youth who are not of child-bearing age.
    Response: We require information on children in foster care who are 
pregnant or parenting to be reported in AFCARS because state-by-state 
data on this topic is required to be included in the annual report to 
Congress per section 479A(a)(7)(B) of the Act. The NYTD does not 
provide case level information on all children in foster care; 
therefore this type of data is not available in the NYTD. We revised 
the proposed data elements on pregnancy and minor parents and combined 
them into one data element that will meet the data needed in section 
479A(A)(7)(B) of the Act for the report to Congress. We now require 
agencies to meet this requirement through one yes/no element, thus 
reducing the reporting burden for these elements. We moved away from 
our 2015 NPRM proposal that required agencies to report the total 
number of biological children either fathered or borne by the child 
because we do not need that level of information. Lastly, while we 
still require agencies to report whether the child in foster care is 
placed with his/her children, we limited the scope to any point during 
the report period, and not for each living arrangement. We will provide 
technical assistance to title IV-E agencies as needed to ensure that 
this data element is reported accurately.
    Comment: Several commenters suggested that agencies report more 
information about children in foster care who are pregnant or 
parenting, such as data on fathers and parenting responsibilities of 
youth in care, and situations when the child is placed separately in 
foster care from the minor parent.
    Response: We revised the data elements on children who are pregnant 
or parenting for purposes of meeting the data reporting requirement in 
section 479A(a)(7)(B) of the Act for the Annual Report to Congress. 
These suggestions would go beyond the data we need for that report and 
therefore, are not needed at the federal level.
Section 1355.44(b)(18) Special Education
    In paragraph (b)(18), we require the title IV-E agency to report on 
the child's special education, status by indicating whether the child 
has an Individualized Education Program (IEP) or an Individualized 
Family Service Program (IFSP).
    Comment: A state title IV-E agency, the association representing 
state title IV-E agencies, and others recommended that we simplify data 
reporting regarding a child's special education status. They did not 
believe it would be useful to distinguish between an IEP and IFSP for 
comparison across states due to the variability across jurisdictions. 
Since only children from birth through age three will have an IFSP, the 
age of the child will indicate which type of plan is in place for the 
child. One state asked when the state should report about a child's 
IEP/IFSP.
    Response: We made revisions to the final rule in response to these 
comments. Agencies will be required to indicate ``yes'' or ``no'' as to 
whether the child has an IEP/IFSP. The agency reports this information 
as of the end of the report period.
    Comment: One state asked if children with an IEP for advanced 
placement should be included in the element.
    Response: Yes, if the IEP meets the definition in section 614(d)(1) 
of Part B of Title I of the IDEA and implementing regulations.
    Comment: Several commenters suggested additional data elements such 
as specifics on the types of special needs services provided to a 
child, whether a representative from the agency attended the child's 
IEP/IFSP meetings, and to provide an option to identify children who 
are receiving services and accommodations in compliance with section 
504 of the Rehabilitation Act.
    Response: We did not make changes to the final rule in response to 
these comments because the overwhelming number of comments we received 
asked us to simplify this element. In addition, we wanted to note that 
it would not be appropriate for us to require agencies to report about 
a child's services under section 504 of the Rehabilitation Act as it is 
a civil rights statute which prohibits discrimination against 
individuals with disabilities, which we did not propose in the 2015 
NPRM. This data element relates to special education as defined in 20 
U.S.C. 1401(29), which means specifically designed instruction, at no 
cost to the parent(s), to meet the unique needs of a child with a 
disability (80 FR 7151, Feb. 9, 2015).
Section 1355.44(b)(19) Prior Adoption
    In paragraph (b)(19), the title IV-E agency must report whether the 
child experienced a prior legal adoption, including any public, 
private, or independent adoption in the United States or adoption in 
another country, and a tribal customary adoption, prior to the current 
out-of-home care episode. If so, in paragraph (b)(19)(i), the title IV-
E agency must report the date it was finalized, and in paragraph 
(b)(19)(ii), the title IV-E agency must report whether the child's 
prior adoption was an intercountry adoption.
    Comment: Several states, a national organization representing state 
child welfare agencies, and others objected to us collecting data on 
all of the child's prior adoptions including the detailed information 
on the type of the prior adoption, and where the child was previously 
adopted. The commenters concerns were that agencies capture information 
on prior adoptions ad hoc based on the willingness of the person to 
provide the information; that this level of detail may not exist; that 
the reliability of collecting every prior adoption is questionable; 
that it would be overly burdensome to research all of the child's prior 
adoptions and questioned the usefulness of the information and our 
authority to collect it. Several states suggested instead that we 
collect only the date of the most recent prior adoption and whether or 
not the child was adopted within the state.
    Response: We were persuaded by the objections noted about these 
data elements and revised the final rule to address some of the 
concerns We are statutorily mandated to collect information about the 
number of children who enter foster care after an adoption was 
legalized per section 479(d) of the Act. As such, we did not remove the 
prior adoption data elements entirely, but revised them to require the 
title IV-E agency to report information for the most recent prior 
adoption only. We also revised the data element on the type of each 
prior adoption to instead require the title IV-E agency to report if a 
prior adoption was an intercountry adoption and revised the name of the

[[Page 90544]]

data element. This is to address reporting on disrupted intercountry 
adoptions required under section 422(b)(12) of the Act which is 
currently provided in the state's annual title IV-B plan update. We 
removed the data element proposed in the 2015 NPRM asking for the 
jurisdiction name of each prior adoption.
    Comment: Associations representing tribal interests suggested 
including customary tribal adoptions to bring awareness and data to 
this issue.
    Response: We agree and revised the final rule to include that title 
IV-E agencies report whether the child experienced a prior legal 
adoption, including a tribal customary adoption, before the current 
out-of-home care episode.
    Comment: National advocacy/public interest groups suggested that we 
collect more information on prior adoptions, such as the child's birth 
country, whether the previous adoption assistance agreement was 
terminated and the previous adoptive parents are still receiving 
subsidies, whether the previous adoption was open or closed, the 
reasons why the adoption disrupted/dissolved, and categorizing adoption 
dissolutions and disruptions separately.
    Response: We considered these comments, but did not make any 
changes to the final rule based on this comment and instead reduced the 
information required on prior adoptions to collect information needed 
to satisfy statutory requirements in section 479(d) and 422(b)(12) of 
the Act. In addition, we took into consideration the overwhelming 
response from state agencies that our proposal to collect more details 
on prior adoptions would be burdensome and outweighs its utility.
    Comment: States questioned how they would report on prior adoptions 
if they did not know or could not ascertain the information. They were 
concerned about missing data counting towards a penalty.
    Response: We have revised the requirements for reporting on prior 
adoptions so that the agency only has to report the most recent prior 
adoption. As such, we do not expect that agencies will have difficulty 
in ascertaining whether the child was adopted prior to entering foster 
care. If the information is unknown because the child was abandoned, 
then the title IV-E agency would report ``abandoned'' for paragraph 
(b)(19).
Section 1355.44(b)(20) Prior Guardianship
    In paragraph (b)(20)(i), the title IV-E agency must report whether 
the child experienced a prior legal guardianship and if so, to report 
the date that the prior legal guardianship became legalized in 
paragraph (b)(20)(ii). We revised our 2015 NPRM proposal to only 
require the title IV-E agency report the date of the most recent prior 
guardianship and eliminated reporting on the type and jurisdiction of 
each prior guardianship.
    Comment: Several states objected to us collecting all of the 
child's prior legal guardianships, and the detailed information on the 
type of the prior guardianship and where the child had a prior legal 
guardianship. The commenters concerns were that agencies capture 
information on prior guardianships ad hoc based on the willingness of 
the person to provide the information; that this level of detail may 
not exist; that the reliability of collecting every prior guardianship 
is questionable; that it would be overly burdensome to research all of 
the child's prior guardianships; and questioned how useful the 
information is and our authority for collecting it.
    Response: We were persuaded by the objections noted and revised the 
final rule to address the concerns about reporting each prior legal 
guardianship and the type and jurisdiction of each prior guardianship. 
We are statutorily mandated to collect information about the number of 
children who enter foster care after a legalized guardianship per 
section 479(d) of the Act. As such, we did not remove the prior legal 
guardianship data element entirely, but revised it to require the title 
IV-E agency to report the date of the most recent prior legal 
guardianship only if the child experiences a prior legal guardianship. 
In addition, we removed the data elements proposed in the 2015 NPRM on 
the type and jurisdiction of each prior guardianship.
Section 1355.44(b)(21) Child Financial and Medical Assistance
    In paragraph (b)(21), we require the title IV-E agency to report 
whether the child received financial and medical assistance, other than 
title IV-E foster care maintenance payments. If so, in paragraphs 
(b)(21)(i) through (b)(21)(xiii), the title IV-E agency must indicate 
whether each type of federal or state/tribal assistance applies: SSI or 
Social Security benefits; Title XIX Medicaid; Title XXI SCHIP; State/
Tribal adoption assistance; State/Tribal foster care; Child support; 
Title IV-E adoption subsidy; Title IV-E guardianship assistance; Title 
IV-A TANF; Title IV-B; SSBG; Chafee Foster Care Independence Program; 
Other.
    Comment: States, a national organization representing state child 
welfare agencies, and others opposed our proposal to require the title 
IV-E agency to report specific federal assistance per diem payment 
amounts for each of the child's living arrangements and expressed 
concern about the increased burden and potential inaccuracies in 
reporting the data. One commenter indicated that collecting this 
information would be burdensome for counties.
    Response: In response to these concerns, we were persuaded to 
revise the financial assistance data elements by removing the data 
element related to federal assistance per diem payment amounts for 
every living arrangement and consolidated the financial and medical 
assistance response options into one data element. We must still 
collect the extent and nature of assistance per section 479(c) of the 
Act; therefore, in paragraph (b)(21) we require title IV-E agencies to 
report whether or not the child is receiving each of 13 types of state/
tribal and federal financial and medical assistance during the report 
period.
    Comment: One commenter questioned whether this data element 
includes a situation where a child returns home but remains in the 
agency's custody and whether the data element applies to financial and 
medical assistance that the child received during the reporting period 
but prior to coming into the agency's custody.
    Response: The title IV-E agency must report the assistance that 
applies beginning when the child enters the reporting population and 
continues until the child is no longer in the agency's placement and 
care responsibility. Therefore, yes the agency must report the 
assistance that applies if the child is placed at home and remains 
under the placement and care responsibility of the title IV-E agency.
Section 1355.44(b)(22) Title IV-E Foster Care During Report Period
    In paragraph (b)(22), we require the title IV-E agency to report 
whether a title IV-E foster care maintenance payment was paid on behalf 
of the child at any point during the report period. We received no 
comments on this data element.
Section 1355.43(b)(23) Through (b)(25) Siblings
    In paragraph (b)(23), we require the title IV-E agency to report 
the total number of siblings that the child under the placement and 
care responsibility of the title IV-E agency has, if applicable.

[[Page 90545]]

    In paragraph (b)(24), we require the title IV-E agency to report 
the number of siblings of the child who are in foster care as defined 
in section 1355.20.
    In paragraph (b)(25), we require the title IV-E agency to report 
the number of siblings of the child who are in the same living 
arrangement as the child, on the last day of the report period.
    Comment: In general, several states and a national organization 
representing state child welfare agencies agreed that the issue of 
sibling placement is important at the practice level when planning for 
children, but is better captured as a qualitative data set. Commenters 
noted it may not be possible for the caseworker to know whether the 
child has siblings and if so how many, because agencies encounter 
multiple overlapping sibling groups, uncertain parentage, and mixed 
biological, legal, and step-parent relationships. They had concerns and 
questions about the 2015 NPRM proposal on siblings (which were in the 
sections 1355.43(e) and 1355.44 of the 2015 NPRM) including the 
definition of siblings, reporting sibling record numbers, and the 
reliability and consistency of the data. They commented that it would 
not provide meaningful valid information for national review, pointed 
out that there are many varied reasons for siblings not being be placed 
together, and that our proposal would not take into account the 
complexity of what may constitute a family in the eyes of a child. Some 
states questioned the value of trying to match sibling record numbers 
and believe this requirement is onerous and of limited value. Some 
commenters recommended that if data on siblings must be gathered in 
AFCARS, we should collect the number of siblings of the child, the 
number of siblings who are also in care, and the number of siblings who 
are in the same placement with the child. Another commenter recommended 
that we collect the number of siblings placed with the child at the 
start of the placement and at any point during the child's time in this 
placement to determine if the child was placed with siblings when 
initially removed from home.
    Response: We carefully reviewed the comments and suggestions and 
while we understand the concerns raised, we determined that it is 
important to continue require title IV-E agencies to report information 
about siblings. We acknowledge that there are many issues that make 
collecting data on siblings difficult. As we noted in the preamble to 
the 2015 NPRM, section 471(a)(31)(A) of the Act requires title IV-E 
agencies to make reasonable efforts to place siblings removed from 
their home in the same foster care, kinship guardianship, or adoptive 
placement, unless such a placement is contrary to the safety or well-
being of any of the siblings. However, we were persuaded to revise the 
sibling data elements to address commenter concerns and simplify 
reporting. We addressed one of the major concerns raised by commenters 
by removing the data elements requiring the agency to report the 
sibling's child record numbers, which indicated which siblings were or 
were not placed with the child. Now, title IV-E agencies must report 
the total number of siblings of the child, the number of siblings that 
are also in foster care as defined in section 1355.20, and the number 
in the same living arrangement on the last day of the report period. We 
recognize the frequent movement of children makes it difficult to 
capture sibling information, so we will only require reporting as of 
the last day of the report period for the data element on siblings who 
are in the same living arrangement.
    Comment: States asked for a clearer definition of sibling and 
questioned, for example whether to report if the child in foster care 
has step-siblings with which the child has no contact.
    Response: We define a sibling to the child as his or her brother or 
sister by biological, legal, or marital connection. We acknowledge that 
title IV-E agencies may confront issues that may make collecting data 
on siblings difficult; however, we are not providing further specifics 
on the definition of sibling. The definition is broad and would include 
reporting the total number of step-siblings which constitutes a legal 
connection.
Section 1355.44(c) Parent or Legal Guardian Information
    In paragraph (c), the title IV-E agency must report information on 
the child's parent(s) or legal guardian(s). In the 2015 NPRM we 
proposed to require the title IV-E agency to report the date of the 
first judicial finding that the child has been subject to child abuse 
or neglect, if applicable. We received comments from states requesting 
that we remove this data element stating that is excessive information, 
has limited value in measuring outcomes, and it does not add 
substantive value to the data file. States also questioned the 
usefulness of this data element due to varying state practices and 
believed it would be best left to a qualitative review process to 
determine how timeframes for permanency are being met by agencies 
rather than collecting information that may or may not be applicable. 
Another state and a university expressed confusion in how to report a 
judicial finding for multiple removals and a private citizen suggested 
revising the name of the data element to use broader judicial 
terminology for states that do not have judicial findings of abuse or 
neglect. We were persuaded by the commenters and removed this element.
Section 1355.44(c)(1) and (c)(2) Year of Birth Parent or Legal Guardian
    In paragraphs (c)(1) and (c)(2), the title IV-E agency must report 
the birth year of the child's parent(s) or legal guardian(s). We did 
not receive comments on these data elements.
Section 1355.44(c)(3) and (c)(4) Tribal Membership for Mother and 
Father
    In these paragraphs, state title IV-E agencies must indicate 
whether the mother and father are members of an Indian tribe. In the 
2016 SNPRM we proposed that state title IV-E agencies gather 
information about the parents' tribal membership in sections 
1355.43(i)(3)(ii) and (i)(3)(iv). We determined that this information 
is better integrated in section 1355.44(c) with other data elements on 
parent and legal guardian information. We retained the requirement in 
the 2016 SNPRM that these elements apply only to state title IV-E 
agencies because they collect information related to the potential 
application of ICWA. We did not receive substantive comments to the 
2016 SNPRM on this specific data element and have retained it in the 
final rule.
Section 1355.44(c)(5) Termination/Modification of Parental Rights
    In paragraph (c)(5), the title IV-E agency must report whether the 
parents' rights were terminated or modified on a voluntary or 
involuntary basis. A voluntary termination means the parent(s) 
voluntarily relinquished their parental rights to the title IV-E 
agency, with or without court involvement. This is a new data element 
that we added in response to a state commenter who asked for 
clarification on how the agency should report voluntary surrenders, 
stating that the type of termination of parental rights (TPR) and the 
pertinent dates can be different for each parent. In the 2016 SNPRM, we 
proposed to require that the state title IV-E agency report whether the 
rights of the Indian child's parents or Indian custodian were 
involuntarily or voluntarily terminated in paragraph (i)(19). However, 
this information is already required in paragraph (c)(5).
    In paragraph (c)(5)(i), the title IV-E agency must report each date 
the title IV-E agency filed a petition to

[[Page 90546]]

terminate/modify parental rights regarding the child's biological, 
legal, and/or putative parent(s), if applicable.
    Comment: An organization representing tribal interests commented 
that the data element for the TPR petition filing date should be 
consistent with ACF's policy that allows tribes to use alternative 
methods for helping a child achieve a permanent placement, such as 
modification or suspension of parental rights (Child Welfare Policy 
Manual section 9.2, question 12).
    Response: We agree that the regulation should be consistent with 
the noted policy and revised the regulation to require the title IV-E 
agency to report the dates the agency filed a petition for a 
``modification'' of parental rights or a termination of parental 
rights.
    Comment: Two states commented that we should eliminate the data 
element for the TPR petition filing date stating it does not provide 
substantive value to the data file. They suggested that we should limit 
reporting to the most recent petition filing date if the child is 
currently available for adoption or was available during the reporting 
period. A university asked whether we need the TPR filing petition date 
for national policy development or program monitoring. A state 
supported the TPR petition filing date element to analyze the length of 
time it takes for a child to achieve permanency through adoption but 
questioned the purpose of reporting each petition date when multiple 
petitions are filed.
    Response: We are retaining the requirement for the title IV-E 
agency to report each date the agency filed a petition to terminate or 
modify parental rights of the child's biological, legal, and/or 
putative parent(s), if applicable. The petition date and date of the 
termination or modification of parental rights in paragraph (c)(5)(ii) 
will allow us to determine the time between when the agency files a 
petition to terminate or modify parental rights and the actual date of 
the termination or modification. Additionally, AFCARS Assessment 
Reviews have shown that TPR filing petition dates are typically in the 
state electronic case files. Regarding multiple petitions, we require 
title IV-E agencies to report each petition date in the event that 
multiple petitions are filed for putative parents. As we stated in the 
2015 NPRM, we require title IV-E agencies to report information on a 
child's putative father, if applicable. A putative father is a person 
who is alleged to be the father of a child, or who claims to be the 
father of a child, at a time when there may not be enough evidence or 
information available to determine if that is correct. For the existing 
AFCARS, we have fielded questions on whether title IV-E agencies should 
provide information on putative fathers. Since the parental rights of 
any putative fathers may need to be terminated before a child legally 
is free for adoption in some jurisdictions, we want to be clear that we 
are interested in collecting information on putative fathers as well. 
We will work with title IV-E agencies during implementation and provide 
technical bulletins for reporting the termination and modification of 
parental rights petition dates.
    Comment: Two states commented that the petition and termination/
modification dates should be tied to the individual parent.
    Response: We agree and will work with title IV-E agencies during 
implementation if there is any additional clarification needed.
    Comment: Two states asked how to report the petition dates if the 
child was previously adopted and whether it is limited to the current 
removal episode.
    Response: We'd like to clarify. If a child was adopted, later 
enters the out-of-home-care reporting population, and the agency files 
a petition to terminate or modify parental rights, the agency must 
report the petition filing date for the adoptive parent because that is 
the parent of the child. We will work with title IV-E agencies during 
implementation if further clarification is needed.
    In paragraph (c)(5)(ii), the title IV-E agency must report the date 
that parental rights are voluntarily or involuntarily terminated/
modified for each biological, legal and/or putative parent, if 
applicable.
    Comment: An organization representing tribal interests commented 
that this data element should include language consistent with ACF's 
policy that allows tribes to use alternative methods for helping a 
child achieve a permanent placement, such as modification or suspension 
of parental rights (Child Welfare Policy Manual section 9.2, question 
12).
    Response: We agree that the regulation should be consistent with 
the noted policy and revised the regulation to require the title IV-E 
agency to report the dates of a ``modification'' of parental rights or 
a termination of parental rights.
Section 1355.44(c)(6) Involuntary Termination/Modification of Parental 
Rights Under ICWA
    If the state title IV-E agency indicated in paragraph (c)(5) that 
the TPR was involuntary and if a state title IV-E agency indicated 
``yes'' to paragraph (b)(4) or indicated ``yes, ICWA applies'' to 
paragraph (b)(5), we require that the state title IV-E agency 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) (paragraph 
(c)(6)(i));
     whether the court decision to involuntarily terminate 
parental rights included the testimony of one or more qualified expert 
witnesses (QEW) in accordance with 25 U.S.C. 1912(f) (paragraph 
(c)(6)(ii)); and
     whether prior to TPR, 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) (paragraph (c)(6)(iii)).
    These are similar to paragraph s (i)(20) and (i)(21) of the 2016 
SNPRM except that we updated the language consistent with 25 CFR 
23.121.
    Comment: The national organization representing state child welfare 
agencies and state title IV-E agencies suggested revisions to simplify 
this section, such as reporting only whether a court made findings that 
continued custody of the Indian child by the parent or Indian custodian 
is likely to result in serious emotional or physical damage for 
termination of parental rights and if yes, did a QEW support this 
finding or only report court order information for involuntary TPRs. 
Another state suggested that we re-order and simplify the voluntary TPR 
data elements. A commenter also suggested that we ask whether a TPR was 
voluntary or involuntary.
    Response: We did not make changes to the final rule in response to 
these comments to simplify these elements. As we indicated in the 2016 
SNPRM preamble, termination standards are important protections for 
Indian children as defined in ICWA given that Congress specifically 
created minimum federal standards for removal of an Indian child to 
prevent the breakup of Indian families and to promote the stability and 
security of families and Indian tribes by preserving the child's links 
to their parents and to the tribe through the child's parent(s). 
Further, distinguishing between involuntary and voluntary terminations 
of parental rights is important in ICWA given specific protections that 
must be provided in each context (25 U.S.C. 1912(e), (f) and 25 U.S.C. 
1913). The final rule now requires state and tribal title IV-E agencies 
to report whether a TPR is voluntary or involuntary in paragraph 
(c)(5). Furthermore, we integrated the

[[Page 90547]]

ICWA-related data elements into certain sections of the final rule, 
thereby moving the data elements on TPR proposed in the 2016 SNPRM to 
paragraph (c) and added a new data element on active efforts at 
involuntary TPR (paragraph (c)(6)(iii)).
    Comment: A state recommended that we require states to list the 
reasons for involuntary TPR, using the reasons from its state statute, 
such as whether a parent is palpably unfit or abuses chemicals.
    Response: We did not make changes in response to these suggestions. 
States information systems differ and include information useful for 
their own internal purposes, but not mandated by AFCARS. We encourage 
states to consider collecting data that helps states to evaluate and 
implement state law, but we do not require that they report those data 
to AFCARS.
    Comment: A state and tribe suggested adding data elements asking 
about alternatives to TPR, such as tribal customary adoption, where the 
parental rights are modified and not severed, and the adoptive parent 
is granted the same rights and responsibilities as they would under a 
contemporary adoption.
    Response: We'd like to clarify. As we explained in the preamble to 
the 2016 SNPRM, the state title IV-E agency must report information 
regarding voluntary and involuntary terminations/modification of 
parental rights, which include tribal customary adoptions.
    Comment: Tribes and organizations representing tribal interests 
recommend that we add numerous data elements, including:
     Whether the court made a determination in a court order 
that active efforts at TPR had been made by the state title IV-E agency 
and whether active efforts were provided by any party seeking TPR.
     whether the tribe was notified when a state seeks TPR for 
an Indian child.
    Response: We agree with the suggestion to require state title IV-E 
agencies to report on active efforts at involuntary TPR. Active efforts 
are required under the ICWA to prevent the breakup of the Indian family 
in two instances: Prior to removal and prior to involuntary TPR. 
Specifically in paragraph (c)(6)(iii), we require state title IV-E 
agencies to report for involuntary TPR 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). This language is 
consistent with the BIA regulation at 25 CFR 23.120 which requires that 
a court concluded that active efforts were made, and does not require a 
court order. We decline to require state title IV-E agencies to report 
the date on which the tribe was notified when a state seeks involuntary 
TPR for an Indian child and provide our reasoning in the preamble 
section on Notification in paragraph (b).
Section 1355.44(c)(7) Voluntary Termination/Modification of Parental 
Rights Under ICWA
    If the title IV-E agency indicates in paragraph (c)(5) that the TPR 
was voluntary, and the state title IV-E agency indicated ``yes'' to 
paragraph (b)(4) or indicated ``yes, ICWA applies'' to paragraph 
(b)(5), the state title IV-E agency must indicate whether the consent 
to termination of parental or Indian custodian rights was executed in 
writing and recorded before a court of competent jurisdiction 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). 
This is similar to sections 1355.43(i)(22), (i)(23) and (i)(24) as 
proposed in the 2016 SNPRM, however, we updated the language consistent 
with 25 CFR 23.125.
    Comment: One state recommended including a mechanism or process to 
ensure that an Indian child retains tribal membership after voluntary 
TPR because it's important for a child to know his/her lineage and 
tribal membership, which offers benefits such as health services and 
educational resources for higher education.
    Response: We agree that it is important to recognize such 
mechanisms and revised the regulation to refer to either a 
``modification'' of parental rights or a termination of parental 
rights. However, AFCARS is not the appropriate vehicle for establishing 
a mechanism or process regarding maintaining tribal membership because 
AFCARS is a data reporting system.
Section 1355.44(d) Removal Information
    In paragraph (d), we require that the title IV-E agency report 
information on each of the child's removal(s) from home.
Section 1355.44(d)(1) Date of Child's Removal
    In paragraphs (d)(1)(i) through (d)(1)(iii), we require the title 
IV-E agency to collect and report the date(s) on which the child was 
removed for each removal of a child who enters the placement and care 
responsibility of the title IV-E agency. We received no comments on 
this data element and have retained the 2015 NPRM proposed language in 
the final rule.
Section 1355.44(d)(2) Removal Transaction Date
    In paragraph (d)(2) we require the title IV-E agency to report the 
transaction date for each of the child's removal dates reported in 
paragraph (d)(1). The transaction date is a non-modifiable, computer-
generated date which accurately indicates the month, day and year each 
response to paragraph (d)(1) was entered into the information system. 
We did not receive relevant comments on this data element and have 
retained the 2015 NPRM proposed language.
Section 1355.44(d)(3) Removals Under ICWA
    In paragraph (d)(3), if a state title IV-E agency indicated ``yes'' 
to paragraph (b)(4) or indicated ``yes, ICWA applies'' to paragraph 
(b)(5), we require that the state title IV-E agency 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) (paragraph 
(d)(3)(i));
     whether the evidence presented for foster care placement 
as indicated in paragraph (d)(3)(i) included the testimony of a 
qualified expert witness in accordance with 25 U.S.C. 1912(e) and 25 
CFR 23.121(a) (paragraph (d)(3)(ii)); and
     whether the evidence presented for foster care placement 
as indicated in paragraph (d)(3)(i) indicates that prior to each 
removal reported in paragraph (d)(1) 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) (paragraph 
(d)(3)(iii)).
    These are similar to sections 1355.43(i)(12) and (i)(14) as 
proposed in the 2016 SNPRM.
    Comment: The national organization representing state child welfare 
agencies was in support of a data element asking about court 
determinations of active efforts because members believe this is the 
best data element to capture information on active efforts to prevent 
the breakup of the Indian family. One tribal commenter noted that in 
some state courts, local practice has been to stipulate to active 
efforts, rather than creating a record that demonstrates active 
efforts.

[[Page 90548]]

    Response: We retained the requirement regarding court 
determinations that active efforts were made to prevent the breakup of 
the Indian family with modifications to be consistent with BIA 
regulations at 25 CFR 23.120. We now require state title IV-E agencies 
to indicate in paragraph (d)(3)(iii) whether the evidence presented for 
foster care placement as indicated in paragraph (d)(3)(i) indicates 
that prior to each removal active efforts were made to prevent the 
breakup of the Indian family and that these efforts were unsuccessful 
in accordance with 25 U.S.C. 1912(d).
    Comment: We received several concerns and suggestions about the 
requirement for the state title IV-E agency to report whether the court 
found 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 and that the evidence presented included 
testimony by a QEW. Two tribes suggested that states be required to 
report whether the QEW meets the standards per the BIA's Guidelines. 
The national organization representing state child welfare agencies 
noted that states experience challenges in meeting the requirement in 
ICWA for QEWs, stating there are not enough QEWs to meet the need for 
court proceedings. One state noted that there is no way to report that 
a court does not require a QEW to testify even if the agency knows that 
a QEW should testify.
    Response: We did not make changes to the final rule in response to 
these comments. We are retaining the requirement that the state must 
report whether evidence presented included the testimony of a QEW for 
the specified court finding but updated the language to reflect the BIA 
regulation at 25 CFR 121(a). As we noted in the preamble to the 2016 
SNPRM, the removal data elements will provide data on the extent to 
which Indian children as defined in ICWA are removed in a manner that 
conforms to ICWA's standards, informs ACF about the frequency of and 
evidentiary standards applied to removals of Indian children, helps 
identify needs for training and technical assistance related to ICWA, 
and highlights substantive opportunities for building and improving 
relationships between states and tribes. Removing the requirement for 
agencies to report whether a QEW provided testimony would diminish our 
ability to achieve these purposes. We require the state title IV-E 
agency to report whether the evidence presented for foster care 
placement as indicated in paragraph (d)(3)(i) included the testimony of 
a QEW in accordance with 25 U.S.C. 1912(e) and 25 CFR 121(a) (paragraph 
(d)(3)(ii)). Thus, we are not asking whether or not the state title IV-
E agency knows that ICWA requires a QEW's testimony, rather we are 
requiring the state title IV-E agency to indicate whether the evidence 
presented included the testimony of a QEW.
    Comment: We received comments suggesting additional data elements 
related to: Emergency removals per section 1922 of ICWA, such as 
whether the court determined that the state properly removed the Indian 
child and how long the emergency removal lasted; and foster care 
voluntary removals, such as whether a court order indicates that the 
voluntary consent to a foster care placement was made in writing and 
recorded in the presence of a judge.
    Response: We did not revise the final rule in response to these 
suggestions. We understand the value of collecting data related to 
voluntary foster placements and emergency removals of children to whom 
ICWA applies. We encourage states to consider collecting this 
information, if consistent with their own practice models, but we 
decline to require collecting and reporting it to AFCARS. At this time, 
we seek to understand the scope of all removals of children to whom 
ICWA applies and therefore we've required broad data elements we 
believe are most critical in relation to Indian children as defined in 
ICWA.
Section 1355.44(d)(4) Environment at Removal
    In paragraph (d)(4) we require the title IV-E agency to report the 
type of environment (household or facility) from a list of seven that 
the child was living in at the time of each of the child's removals 
reported in paragraph (d)(1).
    Comment: One state recommended adding whether a legal guardian is a 
child's relative as a response option because in the proposal, both 
``legal guardian'' and ``child's relative'' are defined to exclude the 
other choice, even though the legal guardian may be a child's relative. 
Other homelessness advocacy groups suggested adding ``homeless'' as a 
separate response option because they feel that data on homelessness is 
very important and relevant to collect to get a more detailed picture 
of where youth running away from system involvement are running to.
    Response: We agree with the suggestion to add ``relative legal 
guardian'' as a response option to distinguish between a guardian who 
is or is not related to the child. We did not add a separate response 
option for ``homelessness'' because it is included in the response 
option of ``other.'' However, we added ``homelessness'' as a 
circumstance of removal at paragraph (d)(6)(xxxiv).
    Comment: Three commenters representing tribal interests recommended 
adding a response option for ``Indian custodian,'' who is a person 
recognized under ICWA that may not be a relative, parent, or legal 
guardian.
    Response: We specified in section 1355.41(c)(2) that for an Indian 
child as defined in ICWA, the term ``legal guardian'' in the specific 
data elements of Sec. Sec.  1355.44(c)(1), (c)(2), (d)(4), and (d)(5), 
includes an Indian custodian as defined in ICWA at 25 U.S.C. 1903 if 
the Indian custodian has legal responsibility for the child.
Section 1355.44(d)(5) Authority for Placement and Care Responsibility
    In paragraph (d)(5) we require the title IV-E agency to indicate, 
for each of the child's removals, whether the title IV-E agency's 
authority for placement and care responsibility of the child was based 
on a court order. We did not receive substantive comments to this data 
element and have mostly retained the language as proposed in the 2015 
NPRM, clarifying only that we intended ``guardian'' to refer to ``legal 
guardian''.
Section 1355.44(d)(6) Child and Family Circumstances at Removal
    In paragraph (d)(6), we require the title IV-E agency to report all 
of the circumstances surrounding the child and family at each removal 
reported in paragraph (d)(1) from a list of 35 circumstances. The 
agency must report all child and family circumstances that are present 
at the time of each removal, including the circumstances that 
contributed to the decision to place the child into foster care.
    We modified the regulation by revising the name of two 
circumstances at removal. In paragraph (d)(6)(xi) we revised the name 
of the circumstance from ``caretaker's alcohol abuse'' to ``caretaker's 
alcohol use'' and in paragraph (d)(6)(xii) we revised the name of the 
circumstance from ``caretaker's drug abuse'' to ``caretaker's drug 
use.'' We did not change the definition of the data element. These 
language changes are based on language guidelines (https://www.whitehouse.gov/ondcp/changing-the-language-draft) recently released 
by the White House Office of National Drug Control Policy that are 
designed to reduce the harmful stigma associated

[[Page 90549]]

with substance use disorders and addiction.
    We also modified the regulation by adding two circumstances at 
removal (paragraphs (d)(6)(xxxii) and (d)(6)(xxxiii)) so that we can 
identify children who are under a title IV-E agreement for title IV-E 
foster care maintenance payments. A commenter to the 2015 NPRM 
suggested that we add a data element allowing title IV-E agencies to 
specify children reported to AFCARS who are under title IV-E 
agreements. We have also received this suggestion from several states 
during AFCARS Assessment Reviews. We believe that the best way to 
address these comments is to add a circumstance at removal that title 
IV-E agencies may indicate if this situation applies for a child. We 
believe this will lead to more accurate reporting and analysis of the 
appropriate children. In addition, this will allow us to clearly 
identify when an Indian child is under the state title IV-E agency's 
placement and care responsibility versus receiving a title IV-E foster 
care maintenance payment under a title IV-E agreement. We believe this 
information, along with the ICWA-related data elements state title IV-E 
agencies are now required to report will provide a clearer picture of 
the AFCARS out-of-home care reporting population. We included separate 
circumstances at removal for title IV-E agreements with another public 
agency and title IV-E agreements with an Indian tribe to better inform 
which title IV-E agreement the child is reported under and provide 
clarity for title IV-E agencies on who is to be included in the out-of-
home care reporting population.
    Comments: Several commenters suggested adding ``sex trafficking 
victim'' as a circumstance at removal.
    Response: We agree with the suggestions to add ``sex trafficking 
victim'' as a circumstance and have added it as paragraph 
(d)(6)(xxviii). This will inform us whether the child is a sex 
trafficking victim at the time the child entered the out-of-home care 
reporting population. The requirements to collect sex trafficking 
information in paragraphs (d)(7) and (d)(8) relate to a child who was a 
victim prior to or while in foster care, which is designed to meet 
statutory reporting requirements.
    Comment: One commenter suggested adding ``prenatal substance 
exposure'' as a circumstance at removal.
    Response: We did not add ``prenatal substance exposure'' as a child 
and family circumstance at removal because we already have response 
options ``prenatal alcohol exposure'' and ``prenatal drug exposure.''
    Comment: Advocacy organizations suggested adding immigration-
related response options as child and family circumstances at removal 
stating that a child's immigration status is important to understand 
the barriers and services to support this population. They also noted 
that an unintended consequence of immigration enforcement can be the 
separation of detained parents from their children.
    Response: We were persuaded by commenters who suggested it was 
important to know when a circumstance at removal is that the parent was 
detained or deported for immigration reasons and added ``parental 
immigration detainment or deportation'' as a child and family 
circumstance at removal to paragraph (d)(6)(xxix). Commenters pointed 
out that this information is important in order to assess the critical 
services that may be required to support the child and the family. In 
addition, it is important to understand what barriers exist for the 
child and family. We removed the data elements from the 2015 NPRM 
proposal in paragraphs (b) and (c) to collect whether the child and 
parents were born in the U.S. for the reasons noted by many commenters 
who opposed them and instead require that agencies report this 
circumstance at removal. We did not add a data element on a child's 
immigration status because that information is not needed at the 
federal level since agencies at the state, tribal, and local level 
determine a child's eligibility for services.
    Comment: Advocates and organizations representing the homeless 
suggested adding many separate circumstances at removal related to 
homelessness stating that data on homelessness is important and 
relevant to collect. Recommendations included types of homelessness 
habitations and particular family situations such as: ``places not 
meant for human habitation'' (i.e., abandoned buildings); ``couch-
surfing''; ``family is living in a shelter or on the streets''; 
``family home is overcrowded''; and ``family home is hazardous 
condition.''
    Response: We agree with the suggestions to add ``homelessness'' as 
a circumstance and have added it as paragraph (d)(6)(xxxiv). Such 
information can help agencies identify services and support for 
children and families. We define homelessness consistent with the 
definition used in the National Youth in Transition Database (NYTD) at 
1356.83(g)(49).
    Comment: Commenters expressed confusion on why we provided domestic 
violence as a child and family circumstance at removal stating that the 
reason for removal would be harm to the child. Other commenters 
suggested that we should modify the domestic violence circumstance to 
require agencies to report intimate partner violence experienced or 
perpetrated by a child of any age and not only those who are eighteen 
years of age and older.
    Response: We appreciate the suggestions to revise this circumstance 
at removal and revised it to make it more consistent with the 
definition of domestic violence in the Family Violence Prevention and 
Services Act (FVPSA). In response to the confusion on why we provided 
domestic violence as a child and family circumstance at removal, we 
noted in the 2015 NPRM that the agency must report all of the 
circumstances that are present at the time of the child's removal, in 
addition to the circumstances or reasons for the child's removal and 
placement into foster care.
    Comment: In the 2015 NPRM we solicited comments on whether we 
should collect information on LGBTQ youth, and if so, what information. 
Several commenters pointed out the unique plight of LGBTQ youth in 
foster care stating that research indicates that LGBTQ youth are 
disproportionately represented within the child welfare system, 
experience high rates of family rejection, and experience unique 
challenges to their personal safety and stability.
    Response: We support further understanding of LGBTQ youth in foster 
care and their experiences while in foster care. Such information can 
help agencies improve their supports and services to these young 
people. We included a circumstance at removal in paragraph (d)(6)(xxx) 
as to whether there is ``family conflict related to the child's sexual 
orientation, gender identity, or gender expression'' to aid us in 
recognizing the needs and experiences of LGBTQ youth who enter foster 
care. Knowing whether family conflict regarding the child's sexual 
orientation, gender identity, or gender expression was a circumstance 
at the child's removal may allow the title IV-E agency to more 
accurately assess the child and plan for the child's safety, 
permanency, and well-being while in foster care.
    Comment: National advocacy/public interest groups suggested that we 
add educational neglect and unaccompanied minor as child and family 
circumstances at removal.
    Response: We agree it is important to capture whether educational 
neglect is a child and family circumstance at removal and included it. 
We defined ``educational neglect'' based on the

[[Page 90550]]

American Humane Association definition as ``alleged or substantiated 
failure of a parent or caregiver to enroll a child of mandatory school 
age in school or provide appropriate home schooling or needed special 
educational training, thus allowing the child or youth to engage in 
chronic truancy.'' We did not include ``unaccompanied minor'' as one of 
the circumstances at removal since the child's immigration status is 
irrelevant to their placement in foster care. We did, however, include 
a circumstance at removal of ``parental immigration detainment or 
deportation'' to paragraph (d)(6)(xxix).
Section 1355.44(d)(7) Victim of Sex Trafficking Prior To Entering 
Foster Care
    In paragraph (d)(7), we require the title IV-E agency to report 
whether the child had been a victim of sex trafficking before the 
current out-of-home care episode. If so, in paragraphs (d)(7)(i) and 
(d)(7)(ii) we require the title IV-E agency to indicate whether the 
agency reported each instance to law enforcement and the dates of each 
report.
    Comment: One commenter asked if the agency should report this 
information for a time prior to the title IV-E agency's involvement 
with the child or family.
    Response: Yes, the responses to paragraphs (d)(7)(i) and (d)(7)(ii) 
require the title IV-E agency to report about victims of sex 
trafficking prior to entering foster care and prior to any agency 
involvement. We have retained the proposed rule language with minor 
edits.
Section 1355.44(d)(8) Victim of Sex Trafficking While in Foster Care
    In paragraph (d)(8), we require the title IV-E agency to report 
whether the child was a victim of sex trafficking while in out-of-home 
care during the current episode. If so, in paragraphs (d)(8)(i) and 
(d)(8)(ii) we require the title IV-E agency to indicate whether the 
agency reported each instance to law enforcement and the dates of each 
report. We have retained the proposed rule language with minor edits.
    Comment: A commenter sought clarification on whether the agency 
should report a date the report was made to law enforcement if an 
agency other than the title IV-E agency made the report.
    Response: No, the agency reports on whether or not the title IV-E 
agency itself made the report to law enforcement. We modified the 
regulation to make this clearer.
    Comment: Many commenters asked if it will be possible for the 
agency to report data on multiple instances of sex trafficking that may 
have occurred during the report period. Another commenter suggested 
that we include sex trafficking as a child and family circumstance at 
the time of removal.
    Response: We agree with the suggestion to add sex trafficking as a 
response option in paragraph (d)(6) Child and family circumstances at 
removal. Because this information is to be reported as it relates to 
each removal episode and is not information that is to be overwritten, 
we have moved it to, the ``removal'' section of the final rule and 
specified that each instance of sex trafficking, report to law 
enforcement, and date must be reported. In addition, we modified the 
language and location of these elements to allow agencies to report 
multiple instances of sex trafficking. We believe these changes clarify 
many of the questions raised by commenters.
    Comment: Organizations representing tribal interests noted that 
there are federal laws and policy barriers that prevent tribes from 
submitting any criminal or civil data to certain national databases, 
therefore tribes should be allowed to indicate they were not authorized 
or allowed to report information about sex trafficking to law 
enforcement.
    Response: Title IV-E agencies are only required to report in AFCARS 
whether or not they reported a child that they identified as a sex 
trafficking victim to law enforcement. Therefore, in the instance where 
the tribe was prohibited by federal law or otherwise to make a report 
to law enforcement and therefore did not make a report the tribe would 
indicate ``no.'' This data element is not a mandate on the tribe to 
make a report of sex trafficking to law enforcement, but to indicate in 
AFCARS whether or not they made a report.
    Comment: We received several other suggestions. One organization 
suggested we provide greater guidance and clarity about child victims 
of sex trafficking when they run away from foster care; several 
commenters suggested including additional elements, including health 
and mental health services a child receives related to sex trafficking, 
whether a sex-trafficking victim was criminally charged, had been 
homeless, missing or a runaway. Further, several commenters suggested 
that we include this information in a different data collection system, 
the National Child Abuse and Neglect Data System (NCANDS).
    Response: We examined the suggestions to add data elements 
regarding victims of sex trafficking, but have not made further 
changes. We do not have a specific use for the additional detailed 
information the commenters requested as we are requiring reporting on 
sex trafficking victims to meet statutory requirements for reporting 
this information to Congress per section 105 of Public Law 113-183 and 
for including this information in AFCARS per section 479(c)(3)(E) of 
the Act. In addition, the statute mandates that this specific sex 
trafficking victim data we are requiring title IV-E agencies to report 
be included in AFCARS and not NCANDS. However, effective May 29, 2017, 
Child Abuse Prevention and Treatment Act (CAPTA) state grant recipients 
must report, to the maximum extent practicable, the number of children 
determined to be victims of sex trafficking (section 106(d)(17) of 
CAPTA).
Section 1355.44(e) Living Arrangement and Provider Information
    In paragraph (e), we require that the title IV-E agency report 
information on each of the child's living arrangements for each out-of-
home care episode. We revised some of the proposed data elements as 
suggested by commenters, integrated data elements relating to ICWA 
placement preferences proposed in the 2016 SNPRM, and removed others as 
follows:
     Removed a data element requiring agencies to report the 
total number of children who are living with their minor parent in each 
living arrangement. We instead require agencies to report whether the 
child and his/her child(ren) are placed together at any point during 
the report period in paragraph (b).
     Removed the data element requiring agencies to report the 
assistance that supports each of the child's living arrangements. We 
merged this list of assistance with the data element Child financial 
and medical assistance in paragraph (b).
     Removed a data element requiring agencies to report the 
total per diem amount of the title IV-E foster care maintenance, 
adoption assistance, or guardianship assistance payment that the child 
is eligible for or received in response to comments. Commenters stated 
that reporting a child's eligibility for a funding source, and the 
amount for which the child is eligible, when a payment has not actually 
been made creates the potential for inaccurate data. In addition a 
national organization representing state child welfare agencies 
commented that reporting these data elements outweighs its usefulness.
     Removed the requirement the title IV-E agency report 
whether the child is

[[Page 90551]]

receiving the following types of services if placed in a non-foster 
family home living arrangement: Specialized education, treatment, 
counseling, and other services. Some commenters noted that collecting 
this service data would be difficult and costly, other commenters 
pointed out that this requirement is not well defined, and it is 
unclear how ACF would use this data.
Section 1355.44(e)(1) Date of Living Arrangement
    In paragraph (e)(1), we require the title IV-E agency to report the 
dates of placement for each of the child's living arrangements for each 
out-of-home care episode. We received no comments and have retained the 
2015 NPRM proposed rule language.
Section 1355.44(e)(2) Foster Family Home
    In paragraph (e)(2), we require the title IV-E agency to report 
whether each of the child's living arrangements is a foster family 
home. We received no comments and have made only minor conforming 
changes to this paragraph.
Section 1355.44(e)(3) Foster Family Home Type
    In paragraph (e)(3), we require the title IV-E agency to report 
whether each type of foster family home, from a list of six, applies 
for each foster family home reported. These are: Licensed home, 
therapeutic foster family home, shelter care foster family home, 
relative foster family home, pre-adoptive home, or kin foster family 
home.
    Comment: Several commenters supported the inclusion of a response 
option of ``kin foster family home'' but were concerned that workers 
will be confused about who should be included in this category and 
misreport data. Many agencies define ``kin'' to include relatives by 
blood, marriage or adoption, in addition to what is frequently referred 
to as ``fictive kin'' and this could lead to worker confusion about 
when to indicate the response option ``relative foster family home'' 
versus ``kin foster family home.'' Thus, commenters suggested that we 
revise the definition of ``kin foster family home'' to specifically 
note that the child is not related to the foster parent(s) by 
biological, legal or marital connection. Commenters made similar 
comments for the data elements Child's relationships to the foster 
parent(s) in paragraph (e)(13) and Child's relationship to the adoptive 
parent(s) or guardian(s) in paragraph (h)(2).
    Response: We agree with the suggestion to modify the definition of 
``kin foster family home'' so it now specifies that the child is not 
related to the foster parent by a ``biological, legal or marital 
connection.'' The revised definition reads: ``The home is one in which 
there is a kin relationship as defined by the title IV-E agency, such 
as one where a psychological, cultural or emotional relationship 
between the child or the child's family and the foster parent(s) and 
there is not a legal, biological, or marital connection between the 
child and foster parent.'' We also made a similar modification to the 
definition of ``kin'' in the data elements Child's relationships to the 
foster parent(s) in paragraph (e)(13) and Child's relationship to the 
adoptive parent(s) or guardian(s) in paragraph (h)(2). The remaining 
foster family home type definitions are retained as proposed in the 
2015 NPRM.
Section 1355.44(e)(4) Other Living Arrangement Type
    In paragraph (e)(4), we require the title IV-E agency to report 
whether a child who is not placed in a foster family home is placed in 
one of the following thirteen living arrangements: Group home-family-
operated, group home-staff-operated, group home-shelter care, 
residential treatment center, child care institution, child care 
institution-shelter care, supervised independent living, juvenile 
justice facility, medical or rehabilitative facility, psychiatric 
hospital, runaway, whereabouts unknown and placed at home. We retained 
the response options as proposed in the 2015 NPRM.
    Comment: A commenter requested definitions for each of the other 
living arrangement types.
    Response: Each response option for the types of other living 
arrangements is explained in detail in paragraph (e)(4) of the 
regulation text. For example ``residential treatment center'' is 
defined as a facility that has the purpose of treating children with 
mental health or behavioral conditions; ``supervised independent 
living'' is defined as where the child is living independently in a 
supervised setting; and ``medical or rehabilitative facility'' is 
defined as where an individual receives medical or physical health 
care, such as a hospital.
    Comment: One commenter suggested that title IV-E agencies have the 
option of classifying a ``group home-family operated'' as a type of 
foster family home. Also, a national organization representing state 
child welfare agencies commented that ``group home family operated'' 
and ``group home staff operated'' are different across jurisdictions 
and may be confusing to agencies.
    Response: We recognize there are variations in how agencies license 
and approve group homes and will provide technical assistance to title 
IV-E agencies on a case by case basis on how to categorize group home 
living arrangements in their jurisdiction for AFCARS reporting 
purposes.
    Comment: One commenter asked if medical and rehabilitative 
facilities include children in a hospital for illness. The commenter 
also asked if psychiatric hospitals include acute care (e.g., three to 
five days).
    Response: Yes, a ``medical or rehabilitative facility'' is one 
where a child receives medical or physical health care, and includes a 
hospital. Paragraph (e) includes options for where a child is currently 
placed and a time frame is irrelevant as the title IV-E agency must to 
report all living arrangements regardless of length of stay. We will 
work with title IV-E agencies on reporting children in these facilities 
as needed upon implementation.
Section 1355.44(e)(5) Private Agency Living Arrangement
    In paragraph (e)(5), we require the title IV-E agency to report 
whether each of the child's living arrangements is licensed, managed, 
or run by a private agency. We received no comments on this data 
element and have retained the 2015 NPRM proposed rule language.
Section 1355.44(e)(6) Location of Living Arrangement
    In paragraph (e)(6), we require that the title IV-E agency report 
the jurisdiction of the child's living arrangement, specifically 
whether the child is placed within or outside of the reporting agency's 
jurisdiction. The agency must also indicate if the child ran away or 
his or her whereabouts are unknown. We received no comments on this 
data element and have retained the 2015 NPRM proposed rule language 
with minor clarifying edits.
Section 1355.44(e)(7) Jurisdiction or Country Where Child Is Living
    In paragraph (e)(7), we require the title IV-E agency to report the 
name of the state, tribal service area, Indian reservation or country 
where the title IV-E agency placed the child for each living 
arrangement, for children placed outside their jurisdiction. We 
received no substantive comments on this data element but added a 
sentence that IV-E agencies must report the information in a format 
according to ACF's specifications to conform with this revision 
throughout the rule. We will

[[Page 90552]]

work with title IV-E agencies on how to report this information.
Section 1355.44(e)(8) Available ICWA Foster Care and Pre-Adoptive 
Placement Preferences
    In paragraph (e)(8), if the state title IV-E agency indicated 
``yes'' to paragraph (b)(4) or indicated ``yes, ICWA applies'' to 
paragraph (b)(5), we require that the state title IV-E agency indicate 
which of the foster care and pre-adoptive placements from a list of 
five are willing to accept placement of the Indian child. The five 
placements options are: 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; and a placement that 
complies with the order of preference for foster care or pre-adoptive 
placements established by an Indian child's tribe, in accordance with 
25 U.S.C. 1915(c). This is similar to paragraph (i)(15) as proposed in 
the 2016 SNPRM.
    Comment: The national organization representing state child welfare 
agencies suggested we eliminate the requirement for the state to report 
on the availability of foster care placements that meet ICWA placement 
preferences stating that it is not essential. One state, citing burden, 
also recommended that we eliminate this data element because other 
information collected on foster care placement preferences is more 
salient. Another state sought clarification on whether this data 
element is asking a broad question about the availability of foster 
care providers or if it is child specific and suggested simplifying the 
information to only indicate with whom the child is placed and not 
availability. Another suggested revising the element to indicate all 
that apply rather than asking for yes/no responses. One tribe was 
concerned that the language ``were available to accept placement'' is 
subjective. They suggested revising the language as follows: ``were 
pursued to accept placement pursuant to subsection 13(xi).''
    Response: We were not persuaded to remove the data element 
indicating the availability of foster care placements that meet ICWA's 
preferences nor make any of the other recommended changes in the final 
rule. No tribes, national tribal organization, or national child 
welfare organizations suggested removing or modifying data elements 
related to the availability of homes that meet ICWA foster or pre-
adoptive placement preferences. However, we modified the term 
`available' to `willing' to be consistent with the adoption placement 
preference data element at paragraph (h), although we presume that any 
home that meets ICWA placement preferences that is willing to foster 
the Indian child is also available, and that a home that meets ICWA 
placement preferences but is unwilling to foster the Indian child is 
unavailable. The option to use terminology ``check all that apply'' 
versus responding with ``yes'' or ``no'' is an implementation issue 
that does not require a regulation change and we will provide technical 
assistance on this as needed.
    The availability of foster care placements that meet ICWA's 
preferences is critical for meeting the purposes of ICWA. This 
information is essential for ACF to determine whether resources are 
needed for recruitment to increase the availability of AI/AN homes that 
can meet ICWA's placement preferences. Under the BIA's regulations at 
25 CFR 23.132, whether a home is available is not a subjective state 
title IV-E agency determination. Rather it is evidence offered by the 
state title IV-E agency to the court that there is good cause to 
deviate from ICWA's placement preferences in a particular case where 
there is also evidence that the state title IV-E agency conducted a 
diligent search to identify a placement that meets the preferences (25 
CFR 23.132).
    Comment: One state commented that at the time of placement, the 
agency does not exhaust all possible relative placements for any child, 
so they are unclear which relatives ACF expects to be included, noting 
that their information system would have to be modified to include 
placement preference elements.
    Response: We'd like to clarify the data element, as it does not 
require the state to report whether they exhausted all relative 
placements. The state is to indicate ``yes'' or ``no'' whether there 
was a member of the Indian child's extended family willing to provide a 
foster care or pre-adoptive placement. Such a member would meet the 
placement preferences of ICWA in 25 U.S.C. 1915(b).
Section 1355.44(e)(9) Foster Care and Pre-Adoptive Placement 
Preferences Under ICWA
    In paragraph (e)(9) if the state title IV-E agency indicated 
``yes'' to paragraph (b)(4) or indicated ``yes, ICWA applies'' to 
paragraph (b)(5), we require that the state title IV-E agency indicate 
whether each of the Indian child's placements (indicated in paragraph 
(e)(1)) meets the placement preferences of ICWA at 25 U.S.C. 1915(b) by 
indicating with whom the Indian child is placed from a list of six 
response options. This is similar to paragraph (i)(16) as proposed in 
the 2016 SNPRM, except that we changed the response option of ``none'' 
to ``placement does not meet ICWA placement preferences.''
    Comment: The national organization representing state child welfare 
agencies suggested we reduce the data elements by asking only whether 
the child was placed in compliance with the placement preferences and 
if no, whether a court make a finding of good cause to deviate from the 
placement preferences.
    Response: We did not make any changes in response to the comment to 
only require reporting on whether or not the child is in a foster care 
or pre-adoptive placement that meets the ICWA placement preferences. We 
seek information on the specific placement because the requirements 
around placement preferences in ICWA are a key piece of the protections 
mandated by ICWA. Placement preferences serve to protect the best 
interests of Indian children and promote the stability and security of 
families and Indian tribes by keeping Indian children with their 
extended families or in Indian foster homes and communities. Factors 
unique to Indian children, including the availability of American 
Indian foster homes, influence decisions about the placement of Indian 
children.
    Comment: One state recommended that we add a response option for 
``group home approved or operated by Indian tribe/organization.''
    Response: We considered this suggestion but decline to make a 
change because our response options reflect the foster care placement 
preference language in ICWA at 25 U.S.C. 1915(b).
    Comment: A tribe suggested including if the tribe agreed with the 
application of the placement preferences.
    Response: We are not making a change as a result of this comment. 
If the tribe has established by resolution a different order of 
preference than that specified in ICWA, the tribe's placement 
preferences apply subject to requirements of 25 U.S.C. 1915(c) and 25 
CFR 23.131 and these placements are captured in AFCARS.
    Comment: Several organizations suggested that we clarify whether 
the placements were tribally licensed or approved homes or another 
Indian family guardian home approved by the state.

[[Page 90553]]

    Response: We considered this suggestion but decline to make 
additional changes because our response options reflect the foster care 
placement preference language in ICWA in 25 U.S.C. 1915(b).
Section 1355.44(e)(10) Good Cause Under ICWA
    In paragraph (e)(10), if a state title IV-E agency indicated 
``yes'' to paragraph (b)(4) or indicated ``yes, ICWA applies'' to 
paragraph (b)(5), and the state title IV-E agency indicated ``placement 
does not meet ICWA placement preferences'' in paragraph (e)(9), we 
require the state title IV-E agency to 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 (25 
U.S.C. 1915(b)), or the Indian child's tribe, if the placement 
preferences for foster care and pre-adoptive placements were not 
followed. This is similar to paragraph (i)(17) as proposed in the 2016 
SNPRM, except that we updated the language consistent with 25 CFR 
23.132.
    Comment: The national organization representing state child welfare 
agencies suggested that we remove the language ``as indicated on court 
order'' from this data element because it could be interpreted in 
different ways and may not accurately reflect the court orders finding 
of good cause.
    Response: We modified the regulation text so that the final rule 
does not include a requirement for the state to report only if the 
court order included the good cause determination. This is consistent 
with the BIA's regulations at 25 CFR 23.132(c). The data element as 
revised requires states to 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 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). This provides states with multiple options for 
obtaining the information.
Section 1355.44(e)(11) Basis for Good Cause
    In paragraph (e)(11), if a state title IV-E agency indicated 
``yes'' to paragraph (b)(4) or indicated ``yes, ICWA applies'' to 
paragraph (b)(5), and the state title IV-E agency indicated ``yes'' to 
paragraph (e)(10), we require that the state title IV-E agency indicate 
the state court's basis for the determination of good cause to depart 
from the ICWA placement preferences from a list of five response 
options. This is similar to paragraph (i)(18) as proposed in the 2016 
SNPRM except that we updated the language consistent with 25 CFR 
23.132.
    Comment: A tribe stated that they are not clear what the response 
option of ``other'' indicates and recommended that we clarify the 
response option. One state recommended adding a list of ``extraordinary 
physical or emotional needs of the Indian child'' to the good cause 
reasons.
    Response: We removed the ``other'' option and modified the list of 
reasons for the state court's basis for the determination of good cause 
to depart from ICWA placement preferences in ICWA to be consistent with 
23.132(c) of the BIA regulations. The final regulation no longer 
includes the response option of ``other.''
Section 1355.44(e)(12) Marital Status of the Foster Parent(s)
    In paragraph (e)(12), we require the title IV-E agency to report 
information regarding the marital status of the each of the foster 
parent(s) where the child is placed. While we received no comments on 
this data element, we revised the final rule to be consistent with 
reporting the marital status of adoptive parents and legal guardians in 
paragraph (h). As we also explain in paragraph (h), several commenters 
recommended that we revise the marital status response options. As 
such, the response options will be as follows: Married couple, 
unmarried couple, separated, and single adult. We replaced the response 
options of ``single male'' and ``single female'' with ``single adult.''
Section 1355.44(e)(13) Child's Relationships to the Foster Parent(s)
    In paragraph (e)(13), we require the title IV-E agency to report 
the type of relationship between the child and the foster parent(s) for 
each foster family home in which the child is placed, from one of seven 
options: Paternal grandparent(s), maternal grandparent(s), other 
parental relative(s), other maternal relative(s), non-relative(s), kin, 
or sibling(s).
    Comment: One commenter suggested that we modify the term ``kin'' 
when describing the relationship between the child and foster parent to 
make clear that the child is not related to the foster parent(s) by 
biological, legal or marital connection. Commenters made similar 
comments for the data elements Foster family home type in paragraph 
(e)(3) and Child's relationship to the adoptive parent(s) or 
guardian(s) in paragraph (h)(2).
    Response: We appreciate the suggestion and modified the term 
``kin'' to indicate that there is not a legal, biological, or marital 
connection between the child and foster parent. We also made a similar 
modification to the definition of ``kin'' in the data elements Foster 
family home type in paragraph (e)(3) and Child's relationship to the 
adoptive parent(s) or guardian(s) in paragraph (h)(2).
    Comment: One commenter suggested that we add aunt and uncle as 
response options for the child's relationship to the foster parents.
    Response: If a child is placed with an aunt or uncle, the level of 
information we are seeking is whether it was a maternal or paternal 
relative, and are not seeking more detailed information than that. We 
did not make changes in response to the suggestion.
Section 1355.44(e)(14) and (e)(20) Year of Birth for Foster Parent(s)
    In paragraphs (e)(14) and (e)(20), we require the title IV-E agency 
to report the year of birth of each of the child's foster parent(s). We 
received no comments on this data element and have retained the 
language as proposed in the 2015 NPRM.
Section 1355.44(e)(15) and (e)(21) Foster Parent(s) Tribal Membership
    In paragraphs (e)(15) and (e)(21), we require the title IV-E agency 
to report whether the foster parent(s) is a member of an Indian tribe. 
These are new data elements not previously proposed in the 2015 NPRM or 
2016 SNPRM. Additionally, we are collecting the same information in 
paragraph (h) regarding adoptive parents and legal guardians. It was 
clear as we analyzed the comments to the 2016 SNPRM that including data 
elements that inquire about the tribal membership of the foster 
parent(s) is information that is in line with our goals to expand the 
information we collect on foster care providers for children in out-of-
home care. We believe that this information will provide more insight 
on meeting the requirements in ICWA on foster care placement 
preferences and will inform recruitment of foster care providers that 
meet the needs of AI/AN children in out-of-home care.
Section 1355.44(e)(16) and (e)(22) Race of Foster Parent(s)
    In paragraphs (e)(16)(i) through (e)(16)(vii) and (e)(22)(i) 
through (e)(22)(vii), we require the title IV-E agency to report the 
race of each of the foster parent(s) which the child has been placed.
    Comment: Organizations representing tribal interests recommended we 
include whether: (1) The foster parent have origins in any of the 
original peoples of North and South America; (2)

[[Page 90554]]

whether the foster parent is a member of a federally recognized Indian 
tribe and; if so, (3) the name of the tribe.
    Response: The response options are consistent with the OMB Revised 
Standards for the Classification of Federal Data on Race and Ethnicity, 
and therefore, we are unable to make a change. These definitions can be 
found at: http://www.whitehouse.gov/omb/inforeg/re_guidance2000update.pdf. While we did not revise this data element, 
at section 1355.44(e)(16) and (e)(22) we require the state title IV-E 
agency report whether the foster parent(s) is a member of an Indian 
tribe in paragraphs (e)(15) and (e)(21).
Section 1355.44(e)(17) and (e)(23) Hispanic or Latino Ethnicity for 
Foster Parent(s)
    In paragraphs (e)(17) and (e)(23), we require the title IV-E agency 
to report the Hispanic or Latino ethnicity of the foster parent(s), if 
applicable. We received no comments on this data element.
Section 1355.44(e)(18) and (e)(24) Gender of Foster Parent(s) and 
(e)(19) and (e)(25) Foster Parent(s) Sexual Orientation
    In paragraphs (e)(18) and (e)(24), we added a requirement for the 
title IV-E agency to indicate whether each foster parent self 
identifies as ``male'' or ``female.''
    In paragraph (e)(19) and (e)(25), we added a requirement that the 
title IV-E agency report whether the foster parent(s) self identifies 
as ``straight or heterosexual,'' ``gay or lesbian,'' ``bisexual,'' 
``don't know,'' ``something else,'' or ``declined'' if the second 
foster parent declined to identify his/her status.
    Comment: While we requested input in the 2015 NPRM on whether to 
require title IV-E agencies to collect LGBTQ-related data in AFCARS on 
children, we received comments about collecting sexual orientation data 
on foster and adoptive parents from state title IV-E agencies, national 
advocacy/public interest groups and other organizations. Those that 
supported collecting data on the foster parents' sexual orientation 
were primarily advocacy organizations representing LGBTQ interests and 
generally noted that the LGBTQ community remains an untapped resource 
for finding permanent families for children and youth in foster care. 
They stated that some of these prospective parents face barriers when 
they attempt to foster or adopt because they identify as LGBTQ. They 
further commented that including this information in AFCARS will 
promote routine discussions between prospective foster parents and 
title IV-E agencies, normalize conversations around sexual orientation, 
and signal increased acceptance of LGBTQ caretakers. State title IV-E 
agencies expressed some of the same concerns with collecting sexual 
orientation data on foster parents as they did for children in foster 
care: Privacy concerns and implications of having this information in a 
government record; concerns that the data may be used in a 
discriminatory way; and they expressed the importance of proper staff 
training for data elements on sexual orientation.
    Response: We were persuaded by the commenters who suggested data 
elements in AFCARS on a foster parent's sexual orientation and require 
agencies to report when a foster parent self identifies as ``straight 
or heterosexual,'' ``gay or lesbian,'' ``bisexual,'' ``don't know,'' 
``something else,'' or ``declined.'' We anticipate that these data 
elements will assist title IV-E agencies in recruiting, training, and 
retaining an increased pool of foster care providers who can meet the 
needs of children in foster care. We specifically added a decline 
response option to respond to the privacy issues raised by commenters. 
Information on sexual orientation should be obtained and maintained in 
a manner that reflects respectful treatment, sensitivity, and 
confidentiality. Several state and county agencies, advocacy 
organizations and human rights organizations have developed guidance 
and recommended practices for how to promote these conditions in 
serving LGBTQ youth in adoption, foster care and out-of-home placement 
settings. ACF provides state and tribal resources for Working With 
LGBTQ Youth and Families at the Child Welfare Information Gateway. The 
following links are provided as general examples of such guidance 
(Minnesota and California examples). ACF will provide technical 
assistance to agencies on collecting this information. Additionally, 
for the same reasons, we made corresponding changes in paragraph (h) 
related to the adoptive parent or legal guardian. We also made a minor 
change in reporting the foster parent's gender, in that we require the 
title IV-E agency to indicate whether each foster parent self 
identifies as ``male'' or ``female'' and made the same change for the 
adoptive parent or legal guardian.
Section 1355.44(f) Permanency Planning
    In paragraph (f), we require that the title IV-E agency report 
information related to permanency planning for children in foster care. 
We made several revisions to this section from the 2015 NPRM to remove 
some proposed data elements that we describe below:
     We removed the requirement for agencies to report 
concurrent planning information based on the comments from a national 
organization representing state child welfare agencies and several 
states. They suggested that this information is better captured at the 
case level and noted that since that concurrent planning is an optional 
practice that not all title IV-E agencies use, the information would 
not be useful at a national level.
     We removed the requirement for agencies to report the 
reason(s) for permanency plan changes based on comments from a national 
organization representing state child welfare agencies and many state 
title IV-E agencies stating that the data element is too subjective, 
the response options are overly broad, the data element will not 
capture plans that change more than once during a report period, and 
the data is too qualitative for AFCARS and better analyzed at the case 
level. The commenters also said that reporting this information would 
be burdensome and training workers and monitoring data quality would be 
challenging.
     We removed the requirement for agencies to report the 
purpose of each in person, face-to-face visit based on comments that 
this data element is not well defined, and that many visits involve 
multiple purposes and will not be well distinguished.
     We removed the requirement for agencies to report whether 
the caseworker visited with the child alone. Several commenters were in 
support of this data element, however, the statutory requirement is for 
agencies to report whether a face-to-face visit has occurred within the 
calendar month and whether it occurred in the child's residence. In 
addition, commenters indicated that collecting information on if a 
worker visits alone would be time consuming and it is not always 
appropriate for the caseworker to visit the child alone.
     We removed the requirement that agencies indicate whether 
the contents of the transition plan apply based on comments that while 
the existence of the plan and its timing is knowable, reporting the 
provisions contained in the transition plan is unnecessary because the 
quality and relevance of a transition plan cannot be determined 
quantitatively.
Section 1355.44(f)(1) and (2) Permanency Plan and Date
    In paragraph (f)(1), we require that the title IV-E agency report 
each

[[Page 90555]]

permanency plan for the child and in (f)(2) the date each plan(s) was 
established during each out-of-home care episode. There are six 
options: Reunify with parent(s) or legal guardian(s), live with other 
relatives, adoption, guardianship, and another planned permanent living 
arrangement.
    Comment: Two states sought clarification on how these elements 
apply to children who have runaway and whether the response options 
should be consistent with CFSR.
    Response: We require the permanency plan response options to be 
consistent with the law at section 475(5)(C) of the Act. The permanency 
plan options in the CFSR are broader and encompasses the discrete 
response options from AFCARS because AFCARS applies to all youth in the 
out-of-home care reporting population, which includes children for whom 
the title IV-E agency has placement and care responsibility but who 
have runaway or whose whereabouts are unknown at the time that the 
title IV-E agency receives placement and care responsibility for the 
child.
    Comment: Other commenters, including national advocacy/public 
interest groups and a private citizen, offered several suggestions, 
including: Adding data that addresses whether the child was consulted 
or participated in developing the permanency plan; about the visitation 
and services the agency provided during visits for children with a 
permanency plan of reunification; and adding a permanency plan response 
option for ``waiting for adoption.'' One commenter questioned the 
usefulness of this data at a federal level.
    Response: We reviewed these suggestions, however we did not make 
changes in response to the commenter's suggestions This level of detail 
and specific case level information go beyond designating a child's 
permanency plan and are not needed at the federal level to meet the 
requirements of section 479(c)(3) of the Act. Additionally, we 
currently collect the child's most recent case plan goal in AFCARS.
Section 1355.44(f)(3) and (4) Periodic Review and Permanency Hearing 
Dates
    In paragraphs (f)(3) and (4), the title IV-E agency must report the 
date of each periodic review and the date of each permanency hearing 
(per section 475(5)(C) of the Act). We did not receive substantive 
comments on these data elements and have retained them as proposed in 
the 2015 NPRM.
Section 1355.44(f)(5) Juvenile Justice
    In paragraph (f)(5), we require the title IV-E agency to report 
whether a juvenile judge or court found the child to be a status 
offender or adjudicated delinquent during the report period.
    Comment: Four states expressed concerns with our proposal for 
agencies to report specifically whether the court identified the child 
to be an ``adjudicated delinquent'' or a ``status offender.'' They 
cited concerns about training workers to ensure data quality and 
difficulty in distinguishing the proposed response option ``adjudicated 
delinquent'' from ``status offender.'' One organization representing 
state child welfare agencies suggested that agencies simply report 
whether or not the court found a child to be either a status offender 
or an adjudicated delinquent because distinguishing between the two is 
not necessary and will vary by and within jurisdictions.
    Response: We were persuaded by the commenters who said we did not 
need to distinguish the specific type of juvenile justice involvement 
for each child. As such, we revised the data element to require title 
IV-E agencies to report yes/no whether or not a court found the child 
to be a status offender or adjudicated delinquent, no longer requiring 
the agency to distinguish between the two.
Section 1355.44(f)(6) and (7) Caseworker Visit Dates and Location
    In paragraphs (f)(6) and (f)(7), we require the title IV-E agency 
to report information on visits between the child's caseworker and the 
child. In paragraph (f)(6), we require the title IV-E agency to report 
the date of each in-person, face-to-face visit between the caseworker 
and the child. In paragraph (f)(7), we require the title IV-E agency to 
report the location of each in-person visit between the caseworker and 
the child.
    Comment: A state asked if this data element pertains to visits 
during the reporting period, the removal episode, or the child's 
lifetime involvement with child welfare services.
    Response: We'd like to clarify that the title IV-E agency must 
collect and report the date and other required information for each in-
person, face-to-face caseworker visit during each six month report 
period. Therefore, if the worker visits the child in-person, face-to-
face each month during the six month report period, the agency will 
report the six dates and locations of the visits.
    Comment: One commenter questioned why we require the agency to 
report caseworker visit information for every case worker visit to a 
child.
    Response: We require agencies to collect and report the date and 
location of each in-person, face-to-face caseworker visit to meet the 
requirements in section 424(f) of the Act, which requires that 90 
percent of children in foster care are visited on a monthly basis by 
their workers, and that the majority of the visits occur in the 
residence of the child.
    Comment: Several commenters recommended that we require agencies to 
also report: What went on during the caseworker visit; the types of 
services provided by the caseworker during the visit; and whether 
coaching or mental health treatment was provided during the visit. One 
commenter suggested that we also collect information on a child's 
visits with biological parents.
    Response: We are retaining the requirements for the title IV-E 
agency to report the date and location of each in-person, face-to-face 
caseworker visits to meet the statutory requirements in section 424(f) 
of the Act. Therefore, we did not make any additional changes to 
include the suggested information as we do not have a specific use for 
it and will not require the agency to collect information not required 
by the law.
Section 1355.44(f)(8) and (f)(9) Transition Plans
    In paragraph (f)(8), we require the title IV-E agency to report 
whether the child has a transition plan that meets the requirements of 
section 475(5)(H) of the Act. If the child has a transition plan, the 
title IV-E agency must report the plan date in paragraph (f)(9).
    Comment: A national organization representing state child welfare 
agencies and states objected to reporting the content of the transition 
plan. They indicated that while the existence of the plan and its 
timing is knowable, reporting the provisions contained in the 
transition plan is unnecessary because the quality and relevance of a 
transition plan cannot be determined quantitatively. Other national 
advocacy/public interest groups supported collecting data we proposed 
on transition plans.
    Response: We were persuaded by the comments and removed the data 
element.
    Commenters: One state asked whether agencies must report transition 
plans that are developed before the 90-day period before the youth 
turns age 18 (or greater age).
    Response: Yes, agencies must report a transition plan developed 
before the 90-day period. We amended the regulation text to make it 
clear that agencies should report all plans developed in

[[Page 90556]]

response to the statute, even if it is before the 90 day period.
    Commenters: An organization representing tribal interests suggested 
that we collect information about whether Indian children have 
information on and access to tribal specific resources and services for 
youth and young adults.
    Response: While there is not requirement for transition plans to be 
this detailed, agencies should be responsive to the individualized 
needs of a specific Indian child.
Section 1355.44(f)(10) Active Efforts
    In paragraph (f)(10), if a state title IV-E agency indicated 
``yes'' to paragraph (b)(4) or indicated ``yes, ICWA applies'' to 
paragraph (b)(5), we require the state title IV-E agency to indicate 
whether the active efforts in each paragraph (f)(10)(i) through 
(f)(10)(xiii) ``applies'' or ``does not apply.'' The state title IV-E 
agency must indicate all of the active efforts that apply once the 
child enters the AFCARS out-of-home care reporting population per 
section 1355.42(a) through the child's exit per paragraph (g)(1) of 
this section and the active efforts made to prevent removal prior to 
the child entering the out-of-home care reporting population. This is 
similar to paragraph (i)(13) as proposed in the 2016 SNPRM, however, we 
updated the language consistent with BIA's regulation at 25 CFR 23.2.
    Comment: Many commenters suggested that the response options be 
updated consistent with BIA's Guidelines and BIA's regulations at 25 
CFR 23.2 and several commenters suggested allowing state title IV-E 
agencies to incorporate active efforts as defined under state law.
    Response: We agree and revised the final rule to be consistent with 
the BIA regulations at 25 CFR 23.2, which contains the regulatory 
definition of active efforts. Section 1355.41(c) specifies that terms 
in ICWA for specified data elements mean the same as in ICWA at 25 
U.S.C. 1903 and 25 CFR 23.2. As such, the state title IV-E agency must 
report if any of the active efforts listed in paragraphs (f)(10)(i) 
through (f)(10)(xiii) were provided prior to and during the child's 
stay in out-of-home care. The state title IV-E agency may report active 
efforts as defined under state law under the response option of ``other 
active efforts tailored to the facts and circumstances of the case'', 
as appropriate.
    Comment: Tribes and organizations representing tribal interests 
commented that data on active efforts is important to report to AFCARS 
because it impacts the individual child's case and is a key protection 
provided in ICWA. However, several commenters and the national 
organization representing state child welfare agencies do not support 
requiring the state title IV-E agency to report information on active 
efforts as it was proposed in the 2016 SNPRM. They recommended removing 
the data element because state title IV-E agencies already mirror the 
best practices that strengthen and ensure the safety of families by 
limiting the need to remove children from their homes and separating 
from parents, guardians or caregivers for early outreach and engagement 
to provide support and services for families before a removal is 
warranted. Several commenters believe that collecting information on 
the specific active efforts that were provided is more appropriate for 
a case review than for AFCARS data collection because these responses 
do not get to the quality of those efforts. Several commenters 
expressed concerns with the functionality of this data element for 
national reporting. One commenter expressed an issue with an absence of 
court orders expressly describing the active efforts and therefore 
state title IV-E agencies will not be able to accurately report this 
information.
    Response: We are not persuaded by these comments to revise the 
final rule because the ``active efforts'' requirement is a vital part 
of ICWA's requirements. The preamble to the BIA's final regulation at 
25 CFR 23.2 details at length the reasons for and benefits of active 
efforts including that ICWA's active efforts requirement continues to 
provide a critical protection against the removal and TPR of an Indian 
child from a fit and loving parent by ensuring that parents who are or 
may readily become fit parents are provided with service necessary to 
retain or regain custody of their child. Data about the frequency with 
which each active effort type is made will help develop policy, 
resources, and technical assistance to support states to employ a range 
of efforts that can meet the needs of Indian children in out-of-home 
care. Lastly, we revised the data element language to reflect BIA's 
regulation at 23.2 and 23.120(a).
    Comment: One commenter requested clarification on whether the 
response options are based on the court identifying that the state 
title IV-E agency did one or more of the active efforts listed or 
whether it is the state title IV-E agency making a determination as to 
which active efforts were made.
    Response: The state must report the active efforts which the state 
title IV-E agency made throughout the child's stay in out-of-home care, 
which may or may not be documented in a court order.
    Comment: Commenters requested clarification on the terminology used 
in the active efforts examples, such as what ACF considers to be part 
of an ``extended family,'' how ACF defines the ``most natural setting 
safely possible,'' and how ``regular visits'' and ``trial home visits'' 
differs from regular caseworker contacts.
    Response: The list of active efforts in paragraphs (f)(10)(i) 
through (f)(10)(xiii) are examples of active efforts drawn from BIA's 
definition of ``active efforts'' in 25 CFR 23.2. The BIA does not 
define the terms used in the examples and therefore, we will not define 
the terminology further. Consistent with BIA's regulation at 25 CFR 
23.2, to the extent possible, active efforts should be provided in a 
manner consistent with the prevailing social and cultural conditions of 
the Indian child's tribe, and in partnership with the child, parents, 
extended family, and tribe.
    Comment: A commenter recommended adding data elements to capture 
whether the state title IV-E agency conducted or caused to be conducted 
a diligent search for the Indian child's extended family members for 
assistance and possible placement, and if no extended family members 
are identified, whether the state title IV-E agency conducted a 
diligent search for other ICWA-compliant placement options.
    Response: We did not make changes to the response options based on 
this comment because we wanted to be consistent with the BIA's 
regulation and examples of ``active efforts'' in 25 CFR 23.2. However, 
we added ``extended family'' to paragraph (f)(10)(v) to match the 
addition of this in paragraph (b).
    Comment: One commenter suggested that if siblings are not kept 
together, that the state title IV-E agency must report why the siblings 
were separated. The commenter stated that collecting this information 
would strengthen the data and create new opportunities to address the 
needs of Indian children in out-of-home care. Two commenters suggest 
that because we proposed in the 2015 NPRM data elements related to 
siblings for all children in the out-of-home care reporting population, 
this data element should be removed. The commenter stated that keeping 
siblings together captures a goal that agencies attempt to achieve for 
all families.
    Response: Although information about siblings is collected 
elsewhere in the final rule for all children in the out-of-home care 
reporting population, we did not make changes to the response options 
in paragraph (f)(10) based on

[[Page 90557]]

this comment because this data element is consistent with BIA's 
regulation at 25 CFR 23.2.
    In the 2016 SNPRM, we proposed that title IV-E agencies report the 
date active efforts began in paragraph (i)(11), however after reviewing 
the comments we removed this proposed data element.
    Comment: The national organization representing state child welfare 
agencies recommended that ACF remove this data element because state 
agencies follow practice standards for early outreach and engagement to 
provide support and services for families before a removal is 
warranted. In addition, the organization recommended overall that we 
remove data elements that may be unreliable, potentially invalid, and 
that place unnecessary burdens. We also received a state comment 
requesting clarification and another state noted they did not currently 
collect this information.
    Response: We agree with the suggestion to remove the date active 
efforts began and revised the final rule accordingly. The BIA's 
regulation at 23.107 specifies that ICWA applies when it is known or 
there is reason to know a child is an Indian child as defined in ICWA 
and that treatment as an Indian child continues until it is determined 
on the court record that the child does not meet the definition of an 
Indian child in ICWA.
Section 1355.44(g) General Exit Information
    In paragraph (g), we require that the title IV-E agency must report 
when and why a child exits the out-of-home care reporting population.
Section 1355.44(g)(1) Date of Exit
    In paragraph (g)(1), we require the title IV-E agency to report the 
date for each of the child's exits from out-of-home care, if 
applicable. We did not receive relevant comments on this data element 
and retained the 2015 NPRM proposed rule language.
Section 1355.44(g)(2) Exit Transaction Date
    In paragraph (g)(2), we require the title IV-E agency to report the 
transaction date for each exit date reported in paragraph (g)(1). The 
transaction date is a non-modifiable, computer-generated date which 
accurately indicates the month, day and year each response to paragraph 
(g)(1) was entered into the information system. We did not receive 
relevant comments on this data element and have retained the 2015 NPRM 
proposed rule language.
Section 1355.44(g)(3) and (4) Exit Reason and Transfer to Another 
Agency
    In paragraphs (g)(3) and (4), we require the title IV-E agency to 
report the reason for each of the child's exit(s) from out-of-home 
care, and if the exit reason is ``transfer to another agency,'' the 
agency type.
    Comment: We received several suggestions to modify the exit reason 
response options to: Identify the manner of a child's death; change how 
a child who exits foster care for jail or prison is reported; add exit 
reasons to identify when a youth becomes ineligible for extended foster 
care; and when a youth voluntarily leaves extended foster care. A few 
states disagreed with some of our proposed response options for exit 
reason.
    Response: We made a minor change to remove the response option 
``other'' proposed in the 2015 NPRM because based on our experience, we 
believe that the response options adequately reflect the reasons why 
children exit out-of-home care and we do not need a response option of 
``other.'' We do not need to revise or add other reasons because these 
exit reasons are designed to capture information about when and where a 
child exits out-of-home care, and are not intended to identify other 
specifics about the child's exit.
    Comment: For the response option ``transfer to another agency'' in 
paragraph (g)(3), a commenter asked for clarification about the phrase 
``but not if the transfer is to a public agency, Indian Tribe, Tribal 
organization or consortium that has an agreement with a title IV-E 
agency under section 472(a)(2)(B) of the Act.''
    Response: We recognized that this language as proposed in the 2015 
NPRM can be confusing because of variation in title IV-E agency 
policies and procedures for transfers and title IV-E agreements. 
Therefore, we revised the response option ``transfer to another 
agency'' in the regulation to be less specific than we proposed in the 
2015 NPRM to read as follows: Indicate ``transfer to another agency'' 
if placement and care responsibility for the child was transferred to 
another agency, either within or outside of the reporting state or 
tribal service area. This revision will permit ACF to provide targeted 
technical assistance for case specific circumstances.
Section 1355.44(h) Exit to Adoption and Guardianship Information
    In paragraph (h), we require that the title IV-E agency report 
information on the child's exit from out-of-home care to a finalized 
adoption or legal guardianship.
    Comment: Several national advocacy/public interest groups 
recommended that we add the following elements: ``sex assigned at birth 
of adoptive parent(s) or legal guardian(s),'' ``gender identity of 
adoptive parent(s) or legal guardian(s),'' ``sex of adoptive parents/
legal guardians,'' and ``sexual orientation of adoptive parent(s) or 
legal guardian(s).''
    Response: In response to these suggestions, we removed the response 
options ``single female'' and ``single male'' and replaced them with 
``single adult.'' We added new data elements on the gender of the 
adoptive parent(s) or legal guardian(s) with the other demographic 
information on adoptive parents and legal guardians. This will provide 
the gender of each adoptive parent or legal guardian separately from 
their marital status. The new data elements are in paragraphs (h)(7) 
for the first adoptive parent or legal guardian and (h)(13) for the 
second adoptive parent or legal guardian. These revisions are similar 
to revisions we made in response to comments regarding foster parent 
demographic information in paragraph (e).
Section 1355.44(h)(1) Marital Status of the Adoptive Parent(s) or 
Guardian(s)
    In paragraph 1355.43(h)(1), the title IV-E agency must report the 
marital status of the adoptive parent(s) or legal guardian(s).
    Comment: We received several recommendations to revise the marital 
status response options, as well as a recommendation to remove this 
data element stating that there is no need for this level of detail at 
the national level. The commenters recommended revisions to the marital 
status response options here and the foster parent marital status 
response options in paragraph (e) or to include other response options, 
such as ``separated'' and ``married, but adopting individually.''
    Response: We examined the suggestions and modified the marital 
status response options. We added the response options of ``separated'' 
and ``married, but adopting or obtaining legal guardianship 
individually.'' Since we added the response option ``married, but 
adopting or obtaining legal guardianship individually,'' we no longer 
need, and removed for the final rule, the instruction we included in 
the 2015 NPRM that instructed title IV-E agencies to ``complete this 
data element even if only one person of the married or common law 
married couple is the adoptive parent or legal guardian of the child.''

[[Page 90558]]

Section 1355.44(h)(2) Child's Relationship to the Adoptive Parent(s) or 
Guardian(s)
    In paragraph (h)(2), we require the title IV-E agency to report the 
relationship(s) between the child and his or her adoptive parent(s) or 
legal guardian(s) from eight options: Paternal grandparent(s), maternal 
grandparent(s), other paternal relative(s), other maternal relative(s), 
sibling(s), kin, non-relative(s), and foster parent(s).
    Comment: Several commenters supported the inclusion of ``kin'' as a 
response option for this data element, but asked for clarification on 
the definition. Another commenter suggested that we not include ``kin'' 
as an option because it is confusing, overlaps with ``non-relative'' 
and is a colloquial term with varied meanings. Commenters stated that 
many agencies define ``kin'' to include relatives by blood, marriage or 
adoption, in addition to what is frequently referred to as ``fictive 
kin'' and this could lead to worker confusion about when to indicate 
the response option ``kin'' verse the other response options for 
relatives. Commenters made similar comments for the data elements 
Foster family home type in paragraph (e)(3) and Child's relationships 
to the foster parent(s) in paragraph (e)(13).
    Response: We agree with the suggestion to modify the definition of 
``kin'' so it now specifies that the child is not related to the 
adoptive parent or legal guardian by a ``biological, legal or marital 
connection.'' The revised definition reads: ``The adoptive parent(s) or 
legal guardian(s) has a kin relationship with the child, as defined by 
the title IV-E agency, such as one where there is a psychological, 
cultural or emotional relationship between the child or the child's 
family and the adoptive parent(s) or legal guardian(s) and there is not 
a legal, biological, or marital connection between the child and foster 
parent.'' We also made a similar modification to the definition of 
``kin foster family home'' in the data element Foster family home type 
in paragraph (e)(3) and Child's relationships to the foster parent(s) 
in paragraph (e)(13).
Section 1355.44(h)(3) and (h)(9) Date of Birth of Adoptive Parent(s) or 
Guardian(s)
    In paragraphs (h)(3) and (h)(9), we require the title IV-E agency 
to report each adoptive parent or legal guardian's birthdate. We 
received no comments on these data elements and have retained the 
language as proposed in the 2015 NPRM.
Section 1355.44(h)(4) and (h)(10) Adoptive Parent(s) Tribal Membership
    In paragraphs (h)(4) and (h)(10), we require the title IV-E agency 
to report whether the adoptive parent(s) or legal guardian is a member 
of an Indian tribe. These are data elements not previously proposed in 
the 2015 NPRM or 2016 SNPRM. Additionally, we are collecting the same 
information in paragraph (e) regarding foster parents. It was clear as 
we analyzed the comments to the 2016 SNPRM that including data elements 
that inquire about the tribal membership of the adoptive parent(s) or 
legal guardian is information that is in line with our goals to expand 
the information we collect on adoptive parents and guardians of 
children who exit out-of-home care to adoption or legal guardianship. 
We believe that this information will provide more insight on meeting 
the requirements to meet placement preferences under ICWA and will 
inform recruitment of providers that meet the needs of AI/AN children 
who exit out-of-home care to adoption or legal guardianship.
Section 1355.44(h)(5) and (h)(11) Race of Adoptive Parent(s) or 
Guardian(s)
    In paragraphs (h)(5)(i) through (h)(5)(vii) and (h)(11)(i) through 
(h)(11)(vii), we require the title IV-E agency to report the race of 
each adoptive parent or legal guardian.
    Comment: Groups representing tribal interests recommended that we 
include whether the adoptive parent/legal guardian has origins in any 
of the original peoples of North and South America and if so whether 
the adoptive or guardian parent a member of a federally recognized 
Indian tribe and the name of the tribe, and if the child maintains 
tribal affiliation and community attachment.
    Response: The response options for race are consistent with the OMB 
Revised Standards for the Classification of Federal Data on Race and 
Ethnicity, and therefore, we are unable to make a change. These 
definitions can be found at: http://www.whitehouse.gov/omb/inforeg/re_guidance2000update.pdf. While we did not revise this data element, 
we require at paragraphs 1355.44(h)(4) and (h)(10) that title IV-E 
agencies report whether the adoptive parent(s) or legal guardian is a 
member of an Indian tribe in paragraphs (h)(4) and (h)(10).
Section 1355.44(h)(6) and (h)(12) Hispanic or Latino Ethnicity of Birth 
of Adoptive Parent(s) or Guardian(s)
    In paragraphs (h)(6) and (h)(12), we require the title IV-E agency 
to report the Hispanic or Latino ethnicity of each adoptive parent or 
legal guardian. We received no comments on these data elements.
Section 1355.44(h)(7) and (h)(13) Gender of Adoptive Parent(s) or 
Guardian(s), and (h)(8) and (h)(14) Adoptive Parent(s) or Guardian(s), 
Sexual Orientation
    In paragraphs (h)(7) and (h)(13), we require the title IV-E agency 
to indicate whether each adoptive parent(s) or legal guardian(s) self 
identifies as ``male'' or ``female.''
    In paragraph (h)(8) and (h)(14), we require that the title IV-E 
agency report whether the adoptive parent(s) or legal guardian(s) self 
identifies as ``straight or heterosexual,'' ``gay or lesbian,'' 
``bisexual,'' ``don't know,'' ``something else,'' or ``declined'' if 
the second adoptive parent(s) or legal guardian(s) declined to identify 
his/her status.
    Comment: Although we requested input on whether to require title 
IV-E agencies to collect LGBTQ-related data in AFCARS for youth, we 
received comments from state title IV-E agencies, national advocacy/
public interest groups and other organizations specifically commented 
on collecting whether a caretaker identifies as LGBTQ. Those that 
supported collecting LGBTQ-related data on adoptive parents or legal 
guardians were primarily advocacy organizations representing LGBTQ 
interests and generally noted that the LGBTQ community remains an 
untapped resource for finding permanent families for children and youth 
in foster care. They stated that some of these prospective parents face 
barriers when they attempt to adopt or obtain legal guardianship 
because they identify as LGBTQ. They further commented that including 
this information in AFCARS will promote routine discussions between 
prospective adoptive parents or legal guardians and title IV-E 
agencies, normalize conversations around sexual orientation, and signal 
increased acceptance of LGBTQ caretakers. State title IV-E agencies 
expressed some of the same concerns with collecting LGBTQ-related data 
on adoptive parents or legal guardians as they did for children in 
foster care: Privacy concerns and implications of having this 
information in a government record; concerns that the data may be used 
in a discriminatory way; and they expressed the importance of proper 
staff training for data elements on sexual orientation.
    Response: We were persuaded by the commenters and we include data 
elements in AFCARS on an adoptive

[[Page 90559]]

parent's or legal guardian's self-reported gender and sexual 
orientation. We anticipate that these data elements will assist title 
IV-E agencies in recruiting, training, and retaining an increased pool 
of providers who can meet the needs of children who exit out-of-home 
care to adoption or legal guardianship. We specifically added a decline 
response option to respond to the privacy issues raised by commenters. 
Additionally, for the same reasons, we made corresponding changes in 
paragraph (e) related to the foster parent(s). As previously stated, 
information on sexual orientation should be obtained and maintained in 
a manner that reflects respectful treatment, sensitivity, and 
confidentiality. Several state and county agencies, advocacy 
organizations and human rights organizations have developed guidance 
and recommended practices for how to promote these conditions in 
serving LGBTQ youth in adoption, foster care and out-of-home placement 
settings. ACF provides state and tribal resources for Working With 
LGBTQ Youth and Families at the Child Welfare Information Gateway. The 
following links are provided as general examples of such guidance 
(Minnesota and California examples). ACF will provide technical 
assistance to agencies on collecting this information. We also made a 
minor change in reporting the adoptive parents' or legal guardians' 
gender, in that we require the title IV-E agency to indicate whether 
each self identifies as ``male'' or ``female'' and made the same change 
for foster parent(s) in paragraph (e).
Section 1355.44(h)(15) and (16) Inter/Intrajurisdictional Adoption or 
Guardianship
    In paragraphs (h)(15) through (h)(16), we require the title IV-E 
agency to report information on the jurisdiction where the child was 
placed for the adoption or legal guardianship.
    Comment: One commenter indicated that collecting information on 
private or international adoptions will impose additional workload on 
staff and will require policy, training, and information system 
changes.
    Response: We do not expect that reporting these data elements would 
require additional work or training for the title IV-E agency since 
they apply only to children who are under the placement and care 
responsibility of the title IV-E agency when they exit foster care to 
adoption or guardianship. The title IV-E agency would have been 
reporting the children while in foster care, and thus would know where 
they placed these children, and whether it is in another country or by 
a private agency through an arrangement with the title IV-E agency. As 
we stated in the 2015 NPRM, similar information on adoptions is already 
collected in the current AFCARS.
    Comment: A commenter was concerned that interjurisdictional and 
intrajurisdictional are too much alike and will continually be 
confused.
    Response: We believe the regulation is clear. The response options 
for reporting where a child is placed for adoption or guardianship 
within the U.S. are limited to placements within or outside of the 
title IV-E agency's jurisdiction. We can provide technical assistance 
during implementation to agencies that need it.
Section 1355.44(h)(17) Adoption or Guardianship Placing Agency
    In paragraph (h)(17), we require the title IV-E agency to report 
the agency that placed the child for adoption or legal guardianship. We 
received no comments on this data element and have retained the 
language proposed in the 2015 NPRM.
Section 1355.44(h)(18) Assistance Agreement Type
    In paragraph (h)(18), we require the title IV-E agency to report 
the type of assistance agreement that the child has from five response 
options: Title IV-E adoption assistance agreement; State/tribal 
adoption assistance agreement; Adoption-Title IV-E agreement non-
recurring expenses only; Adoption-Title IV-E agreement Medicaid only; 
Title IV-E guardianship assistance agreement; State/tribal guardianship 
assistance agreement; or no agreement. We originally proposed to 
collect information about whether a child was receiving a title IV-E 
adoption or guardianship assistance subsidy in a separate data file, 
which we explained in the preamble discussion for section 1355.45 that 
we removed for the final rule. Since we are still interested in knowing 
how a child is supported when he or she exits to adoption or 
guardianship, we now collect information on title IV-E assistance 
agreements and non-title IV-E assistance agreements in the out-of-home 
care data file. We also have a response option for ``no agreement'' if 
a child exits out-of-home care to adoption or guardianship without an 
assistance agreement. We did not receive comments on this data element 
as proposed in the 2015 NPRM as section 1355.44(c)(1).
Section 1355.44(h)(19) Siblings in Adoptive or Guardianship Home
    In paragraph (h)(19), we require title IV-E agencies to report the 
number of siblings of the child who are in the same adoptive or 
guardianship home as the child.
    Comment: We received several comments to our 2015 NPRM proposal to 
collect information on siblings, which we also discussed in paragraph 
(b). In general, several states and a national organization 
representing state child welfare agencies agreed that the issue of 
sibling placement is important at the practice level when planning for 
children, but is better captured as a qualitative data set. Commenters 
noted it may not be possible for the caseworker to know whether the 
child has siblings and if so how many because agencies encounter 
multiple overlapping sibling groups, uncertain parentage, and mixed 
biological, legal, and stepparent relationships. They had concerns and 
questions about the 2015 NPRM proposal on siblings (which were in the 
sections 1355.43(e) and 1355.44 of the 2015 NPRM) including the 
definition of siblings, reporting sibling record numbers, and the 
reliability and consistency of the data. Specifically related to 
siblings placed together in adoption or guardianship, commenters had 
questions about whether and when to report the child record number for 
a sibling who exited to adoption or legal guardianship and one state 
commented that sibling information is not carried into TPR and adoption 
cases and so the agency would not be able to report if a child in out-
of-home care is placed in the same setting as a sibling who is adopted. 
One commenter suggested that we simplify the reporting and require 
agencies to report if siblings who exited foster care were placed 
together in the same adoptive or guardianship home.
    Response: We carefully reviewed the comments and suggestions and 
while we understand the concerns raised, we determined that it is 
important to continue to require title IV-E agencies to report 
information about siblings. As we noted in the preamble to the 2015 
NPRM, section 471(a)(31)(A) of the Act requires title IV-E agencies to 
make reasonable efforts to place siblings removed from their home in 
the same foster care, kinship guardianship, or adoptive placement, 
unless such a placement is contrary to the safety or well-being of any 
of the siblings. However, we acknowledge that there are many issues 
that make collecting data on siblings difficult and we were persuaded 
to revise the sibling data elements to address commenter concerns and 
simplify reporting. Therefore, we revised the regulation to require the 
agency to report the number of the child's siblings who are in the same 
adoptive or guardianship home as

[[Page 90560]]

the child. We believe that this data element, along with the data 
elements in paragraph (b) related to siblings placed together in out-
of-home care, are less complicated than the 2015 NPRM proposal and will 
yield useful information about siblings.
Section 1355.44(h)(20) Available ICWA Adoptive Placements
    In paragraph (h)(20), if a state title IV-E agency indicated 
``yes'' to paragraph (b)(4) or indicated ``yes, ICWA applies'' to 
paragraph (b)(5), we require that the state title IV-E agency to 
indicate which adoptive placements from a list of four were willing to 
accept placement of the Indian child. This is the same as paragraph 
(i)(26) proposed in the 2016 SNPRM.
    Comment: A few state and tribal commenters recommend this data 
element be removed. One state believes that while it is `nice to know' 
which placements are `willing', the more salient questions are whether 
the preferences were followed in regard to the child's adoption and, if 
not, why not. Another commenter is concerned the language seems to 
leave the answer open to a very subjective interpretation of ``were 
available/willing to accept placement'' and answering ``yes'' or ``no'' 
does not document diligent or active efforts to ensure the child is 
adopted by an ICWA compliant placement. That commenter suggests 
replacing it with which ICWA placement preferences were pursued to 
accept a placement for adoption. One tribal commenter expressed concern 
about asking which ICWA placement preferences were willing to accept 
placement because if there are not enough willing Indian foster and 
adoptive homes, it may appear that tribes are disinterested in 
providing homes for Indian children.
    Response: We were not persuaded to remove the data element 
indicating the availability of adoptive placements that meet ICWA's 
placement preferences. The availability of adoptive placements that 
meet ICWA's preferences is critical for meeting the purposes of ICWA. 
This information is essential for ACF to determine whether resources 
are needed for recruitment to increase the availability of AI/AN homes 
that can meet ICWA's placement preferences for adoption. Under the 
BIA's regulation at 25 CFR 23.130, whether a home is available is not a 
subjective state title IV-E agency determination but rather is evidence 
offered by the state title IV-E agency to the court that there is good 
cause to deviate from ICWA's placement preferences in a particular case 
where there is also evidence that the state title IV-E agency conducted 
a diligent search to identify a placement that meets the preferences 
(25 CFR 23.130).
Section 1355.44(h)(21) Adoption Placement Preferences Under ICWA
    In paragraph (h)(21), if a state title IV-E agency indicated 
``yes'' to paragraph (b)(4) or indicated ``yes, ICWA applies'' to 
paragraph (b)(5), we require the state title IV-E agency indicate 
whether each placement reported in paragraph (h)(1) meets the placement 
preferences of ICWA in 25 U.S.C. 1915(a) by indicating with whom the 
Indian child is placed from a list of five response options. This is 
similar to paragraph (i)(27) as proposed in the 2016 SNPRM, except that 
we changed the response option ``none'' to ``placement does not meet 
ICWA placement preferences.''
    Comment: One commenter recommends adding a data element to collect 
information on whether the tribe supported the placement and adoption 
of the child.
    Response: We are not making a change as a result of this comment. 
Rather, we are retaining the data elements as proposed to require that 
the state title IV-E agency report certain information on adoptive 
placement preferences, which are requirements in ICWA at 25 U.S.C. 
1915(a), if the Indian child exited foster care to adoption. Collecting 
information on whether the tribe supported the placement and adoption 
of the child is not required by ICWA at 25 U.S.C. 1915(a).
Section 1355.44(h)(22) Good Cause Under ICWA
    In paragraph (h)(22), if a state title IV-E agency indicated 
``yes'' to paragraph (b)(4) or indicated ``yes, ICWA applies'' to 
paragraph (b)(5), we require that if the state title IV-E agency 
indicated ``placement does not meet ICWA placement preferences'' in 
paragraph (h)(21), the state title IV-E agency 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 (25 
U.S.C. 1915(a)) or to depart from the placement preferences of the 
Indian child's tribe (25 U.S.C. 1915(c)). This is similar to paragraph 
(i)(28) as proposed in the 2016 SNPRM, except that we updated the 
language consistent with 25 CFR 23.132.
    Comment: The national organization representing state child welfare 
agencies recommended removing this data element, or alternatively, 
modifying this data element to read ``indicate whether there is a court 
order that indicates the court's basis for the finding of good cause.''
    Response: We are not persuaded to remove this data element for the 
reasons we set forth in the preamble to the 2016 SNPRM. However, the 
final rule does not include a requirement for the state to report only 
if the determination was made in a court order. We revised the data 
element to be consistent with the BIA's regulations at 25 CFR 
23.132(c). Now, states are to 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 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). This provides states with multiple options for 
obtaining the information.
Section 1355.44(h)(23) Basis for Good Cause
    In paragraph (h)(23), if a state title IV-E agency indicated 
``yes'' to paragraph (b)(4) or indicated ``yes, ICWA applies'' to 
paragraph (b)(5), and the state title IV-E agency indicated ``placement 
does not meet ICWA placement preferences'' in paragraph (h)(22), we 
require that the state title IV-E agency indicate the state court's 
basis for the determination of good cause to depart from ICWA placement 
preferences, from a list of five response options. This is similar to 
paragraph (i)(29) as proposed in the 2016 SNPRM except that we updated 
the language consistent with 25 CFR 23.132; removed the response option 
``other''; and added a response option ``The presence of a sibling 
attachment that can be maintained only through a particular 
placement.''
    Comment: The national organization representing state child welfare 
agencies recommends removing the courts basis for the finding of good 
cause so that states can focus on the one essential data file element 
to understand how many Indian children exited the child welfare system 
to a permanent adoption placement. Another commenter requested 
clarification regarding what an ``other'' good cause might be, and 
recommended that if ``other'' is selected, the worker must enter into a 
narrative field explanation of the court's finding.
    Response: We were not persuaded to remove the data element 
indicating the reasons for good cause not to place according to ICWA 
placement preferences. As we indicated in the preamble to the 2016 
SNPRM, reporting information on good cause will help agencies better 
understand why the ICWA placement preferences are not followed. In 
addition, such information will aid in targeting training and resources 
needed to assist states in improving Indian child outcomes.

[[Page 90561]]

However, we integrated the ICWA-related data elements into other 
sections of the final rule, thereby moving the data elements on 
adoption placement preferences proposed in the 2016 SNPRM in paragraph 
(i) to paragraph (h) and modified the list of reasons for the state 
court's basis for the determination of good cause to depart from ICWA 
placement preferences in ICWA to be consistent with 25 CFR 23.132(c) of 
the BIA regulations. The possible reasons no longer include the option 
of ``other'' and now include the following options: Request of one or 
both of the child's parents; request of the Indian child; 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(a) but none 
has been located; 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; and the presence of a sibling attachment 
that can be maintained only through a particular placement.

Section 1355.45 Adoption and Guardianship Assistance Data File Elements

    In this section, we require the title IV-E agency to report: (1) 
Information on the title IV-E agency submitting the adoption and 
guardianship assistance data file and the report date; (2) basic 
demographic information on each child, including the child's date of 
birth, gender, race and ethnicity; (3) information in the child's title 
IV-E adoption or guardianship agreement, including the date of adoption 
or guardianship finalization, and amount of subsidy, and 4) information 
about the agreement termination date, if applicable.
    We retained many of the data elements proposed in the 2015 NPRM, 
but modified section 1355.45 of the final rule to remove the proposal 
to collect information regarding: Whether a child is born in the U.S., 
non-recurring costs, inter/intra-jurisdictional adoption or 
guardianship, inter-jurisdictional adoption or guardianship 
jurisdiction, adoption or guardianship placing agency information, and 
sibling information. These response options ensure that title IV-E 
agencies report only the essential core set of data elements that we 
describe below.
Section 1355.45(a) General Information
    In paragraph (a), we require that the title IV-E agency report 
information about the title IV-E agency, report date and child record 
number.
Section 1355.45(a)(1) Title IV-E Agency
    In paragraph (a)(1), we require that the title IV-E agency indicate 
the title IV-E agency responsible for submitting AFCARS data to ACF. We 
received no comments on this element.
Section 1355.45(a)(2) Report Date
    In paragraph (a)(2), we require that a title IV-E agency indicate 
the current report period. We received no comments on this element.
Section 1355.45(a)(3) Child Record Number
    In paragraph (a)(3), we require that the title IV-E agency report 
the child's record number. We received no relevant comments on this 
element.
Section 1355.45(b) Child Demographics
    In paragraph (b), we require that the title IV-E agency report 
information on the child's date of birth, gender, race and ethnicity.
Section 1355.45(b)(1) Child's Date of Birth
    In paragraph (b)(1), we require the agency to report the child's 
birthdate. This data element will be used with paragraph (d) to 
determine whether the child is in either the ``pre-adolescent child 
adoption'' or ``older child adoption'' category. We received no 
comments on this element.
Section 1355.45(b)(2) Child's Gender
    In paragraph (b)(2) we require the title IV-E agency to indicate 
whether the child is ``male'' or ``female'' as appropriate.
    Comment: One state commented that all gender fields should include 
additional response option(s) to capture transgender, gender fluid, and 
other non-binary individuals.
    Response: We revised the name of the data elements in sections 
1355.44(e) and (h) to require title IV-E agencies to report the gender 
of the foster parent(s), adoptive parent(s), and legal guardian(s).
Section 1355.45(b)(3) Child's Race
    In paragraph (b)(3), we require the title IV-E agency to indicate a 
child's race as determined by the child or the child's parent(s) or 
legal guardians from a list categories described in paragraphs 
(b)(3)(i) through (b)(3)(viii) of this section.
    Comment: One group recommended asking about membership in a 
federally-recognized tribe. One commenter suggested that regional 
standards and practices should be documented regarding Latinos that 
show over-representation and outcome disparities, stating that without 
specific efforts to collect data related to Indian, African American 
and Latino families, the information will continually be left out of 
scrutiny and interpretation of data will lack the substance necessary 
to identify successful efforts and areas that are lacking.
    Response: The language used reflects the OMB Revised Standards for 
the Classification of Federal Data on Race and Ethnicity, standardizing 
federal data collection. We agree that requiring state title IV-E 
agencies to collect and report data that could identify a child as an 
Indian child as defined in ICWA is of paramount importance. Therefore, 
while we did not revise this data element, we require additional 
information on the child's tribal membership or eligibility for tribal 
membership in the out-of-home care population.
Section 1355.45(b)(4) Hispanic or Latino Ethnicity
    In paragraph (b)(4), we require the title IV-E agency to indicate a 
child's ethnicity as determined by the child or the child's parent(s) 
or legal guardian(s). We received no comments on this element.
    In paragraph (c) we require that the title IV-E agency report 
information on the type of assistance agreement, and the subsidy 
amount.
    Comment: Several national organizations recommended that we require 
title IV-E agencies to report additional data elements including: when 
a successor adopter or guardian has been named in the agreement for 
Adoption Assistance or guardianship assistance, whether the successor 
became the adoptive parent or guardian, whether the caretaker has been 
informed of federal and/or state post-permanency services available 
outside of the adoption assistance or guardianship assistance funds 
subsidy and/or Medicaid specific benefits. Commenters recommend these 
additional data elements because they believe the data can provide more 
information about what work is needed to ensure successors are named in 
the agreements whenever possible, and to prevent unnecessary re-entry 
into foster care.
    Response: We considered these suggestions, but did not make changes 
in response. States information systems differ and include information 
useful for their own internal purposes, but not mandated by AFCARS. We 
encourage states to consider collecting data that

[[Page 90562]]

helps states identify how to ensure successors are named in the 
agreements whenever possible, and to evaluate how to prevent 
unnecessary re-entry into foster care, but we do not require that they 
report those data to AFCARS.
Section 1355.45(c)(1) Assistance Agreement Type
    In paragraph (c)(1) we require the title IV-E agency to report 
whether the child is or was in a finalized adoption with a title IV-E 
adoption assistance agreement or in a legal guardianship with a title 
IV-E guardianship assistance agreement, pursuant to sections 473(a) and 
473(d) of the Act, in effect during the report period.
    Comment: One state requested clarification regarding why title IV-E 
agencies must report information on only those children that have a 
title IV-E agreement. The state expressed concern that this limited 
information does not present a complete picture of adoptions across the 
state.
    Response: We did not make changes in response to these suggestions. 
In the 2015 NPRM, we proposed one data element with narrowed response 
options since we propose to collect information on children under title 
IV-E adoption and guardianship assistance agreements only, rather than 
both title IV-E and non-title IV-E agreements. This is in line with our 
responsibility regarding matters related to children receiving Federal 
benefits, such as Federal budget projections. We encourage states to 
consider collecting data that helps states to evaluate and implement 
state law, but we do not require that they report those data to AFCARS.
Section 1355.45(c)(2) Adoption or Guardianship Subsidy Amount
    In paragraph (c)(2), we require the title IV-E agency to report the 
per diem dollar amount of the financial subsidy paid to the adoptive 
parent(s) or legal guardian(s) on behalf of the child during the last 
month of the current report period, if any.
    Comment: One national organization commented that children under 
guardianship of others and adopted children do not have open service 
cases even when there is a subsidy attached. The financial information 
for continuation of subsidy is captured by many states in other 
systems. Reporting on the expanded population would require a 
significant change in the application and report programs and laws and 
policies in many states.
    Response: We are not persuaded to make a change based on this 
comment. We currently do not collect data on children receiving ongoing 
financial assistance after an adoption or guardianship is finalized, 
though those children typically receive benefits for many years, until 
age 18 and possibly up to age 21. When AFCARS was originally 
implemented, such children were a smaller portion of the caseload and 
program cost. However, in recent years, the adoption assistance 
caseload alone has grown dramatically, and now represents approximately 
70 percent of title IV-E beneficiaries. As we explained in the 2015 
NPRM, since title IV-E funds are reimbursed for adoption assistance and 
guardianship assistance costs, this information is essential for 
conducting budget projections and program planning for both title IV-E 
adoption assistance and guardianship assistance programs.
Section 1355.45(d) Adoption Finalization or Guardianship Legalization 
Date
    In paragraph (d), we require the title IV-E agency to report the 
date that the title IV-E adoption was finalized or the guardianship 
became legalized. This data element will be used with paragraph (b) to 
determine whether the child is in either the ``pre-adolescent child 
adoption'' or ``older child adoption'' category. We received no 
comments on this element.
Section 1355.45(e) Agreement Termination Date
    In paragraph (e), we require that if the title IV-E agency 
terminated the adoption assistance or guardianship assistance agreement 
or the agreement expired during the reporting period, the title IV-E 
agency to report the month, day and year that the agreement terminated 
or expired.
    Comment: Several national organizations recommended that the title 
IV-E agency report the reason why guardianship and adoption agreements 
are terminated so that agencies can capture more information about 
dissolutions and identify what additional supports may be needed for 
the children involved, and recommended that such reasons include: Death 
of adoptive parent or guardian, incapacitation, dissolution, child 
reached age of majority, or other. One state requested that we explain 
the value of collecting Agreement Termination Dates, especially with 
not collecting why the agreements are closing.
    Response: We considered these suggestions, but did not make changes 
in response to commenters because we determined that at a national 
level we do not have a use for or need for this level of detail to 
determine how many agreements exist. We are collecting the end dates 
for title IV-E adoption and guardianship assistance agreements because 
combined with the child's date of birth they will allow us to calculate 
more accurately the number of children served under title IV-E 
agreements, as well as the incidence of dissolution of adoption and 
legal guardianships for children supported by the title IV-E programs. 
States may include such additional data in their data system if it is 
useful for their own internal purposes, but not mandated by AFCARS.

Section 1355.46 Compliance

    In section 1355.46, we specify the type of assessments we will 
conduct to determine the accuracy of a title IV-E agency's data, the 
data that is subject to these assessments, the compliance standards and 
the manner in which the title IV-E agency initially determined to be 
out of compliance can correct its data.
    Comment: Overall, states that commented believe these compliance 
standards may negatively affect the status of a state's AFCARS 
Improvement Plan or SACWIS improvements, and that compliance with the 
new data requirements may require states to rebuild existing systems or 
may be incompatible with recent SACWIS improvements.
    Response: We recognize that agencies will need to make revisions 
and improvements to their electronic case management systems for the 
final rule. We intend to close out all AFCARS Improvement Plans and we 
will work with title IV-E agencies to meet the final rule requirements. 
Enhancements to the title IV-E agency's case management system to 
support the revised data collection requirements may be eligible for 
title IV-E administrative funds for development costs.
    Comment: One commenter pointed out that there appears to be no 
administrative process for a state to challenge ACF's initial 
assessment of data noncompliance.
    Response: That is correct. Rather, we provide the title IV-E agency 
with an opportunity to appeal the ``final'' determination of compliance 
to the HHS Departmental Appeals Board (DAB) after the agency has had an 
opportunity to submit corrected data and come into compliance. This is 
covered in section 1355.47(d) ``Appeals.''
Section 1355.46(a) Files Subject to Compliance
    In paragraph (a), we specify that ACF will determine whether a 
title IV-E

[[Page 90563]]

agency's AFCARS data are in compliance with section 1355.43 and data 
file and quality standards described in paragraphs (c) and (d). We 
specify that ACF will exempt records related to a child in either data 
file whose 18th birthday occurred in a prior report period and will 
exempt records relating to a child in the adoption and guardianship 
assistance data file who is in a title IV-E guardianship from a 
compliance determination as described in paragraph (e) of this section.
    Comment: Several commenters believe that the data and the multiple 
data file requirements are complex and thus compliance failures and 
penalties are unavoidable.
    Response: We understand the commenters to be concerned that because 
of the revised data file standards, it will be more difficult for a 
state to submit compliant data. The standards we set forth are 
authorized by the law and in line with the requirement that the data 
submitted to us is reliable and consistent. We established the specific 
standards for compliance consistent with our current requirements (see 
Appendix E to part 1355 of current regulations). Furthermore, the 
statute allows a six-month period for corrective action during which 
time technical assistance will be available to assist title IV-E 
agencies in submitting compliant data. The approach is also consistent 
with the how we implemented the NYTD.
Section 1355.46(b) Errors
    In paragraph (b), we outline the definitions of errors in 
paragraphs (b)(1) through (b)(5) regarding missing data, invalid data, 
internally inconsistent data, cross-file errors, and tardy 
transactions. We also provide for how we will identify those errors 
when we assess information collected in a title IV-E agency's out-of-
home care data file (per section 1355.44) and adoption and guardianship 
assistance data file (per section 1355.45).
    Comment: Several commenters requested clarification about what ACF 
will consider ``errors'' for elements, whether errors would be 
identified by internal consistency checks within the data file, and 
whether errors would be identified by review during a later AFCARS or 
SACWIS audit.
    Response: We identify five errors in paragraph (b) that we will 
assess: Missing data, invalid data, internally inconsistent data, 
cross-file errors, and tardy transactions. Assessing these errors will 
help ACF determine if the title IV-E agency's data files meet the data 
file submission and data quality standards outlined in paragraphs (c) 
and (d) of this section. ACF will develop and issue error 
specifications in separate guidance.
    Comment: One commenter requested clarification about whether a 
title IV-E agency will be non-compliant if the data are incomplete or 
unavailable for the title IV-E kinship guardian assistance program or 
extension of foster care to age 21 programs.
    Response: We'd like to clarify that the regulation text specifies 
that ACF will exempt records related to a child in either data file 
whose 18th birthday occurred in a prior report period and will exempt 
records relating to a child in the adoption and guardianship assistance 
data file who is in a title IV-E guardianship from a compliance 
determination as described in paragraph (e) of this section. However, 
this information is still important to ACF and we plan to ensure that 
title IV-E agencies submit quality data through such means as program 
improvement plans, targeted technical assistance, or data quality 
utilities.
    Comment: One commenter stated that it is unreasonable that we are 
not publishing more detailed information on compliance standards in the 
regulation. Further, the commenter stated that changing internal 
consistency and cross-check standards ``as needed,'' results in the 
compliance target becoming elusive.
    Response: We understand the commenter is concerned that we have 
chosen not to promulgate details on error specifications and checks 
through notice and comment rulemaking. Instead, we plan to publish 
these error checks outside of formal rulemaking through official 
technical bulletins and policy. This provides us the flexibility to 
update and revise them as needed to keep pace with changing and 
advancing technology. This is consistent with the approach we have 
taken with the NYTD compliance checks.
    Comment: A national organization representing state child welfare 
agencies, four states and two other organizations objected to the 30 
day transaction date timeframe for paragraphs (d)(2) and (g)(2) stating 
that it is an insufficient timeframe for entering the removal and exit 
dates. They recommended that it remain at 60 days as in current AFCARS. 
They cited the burden of the shorter timeframe, commenting that it is 
unduly onerous and would be a challenge for local agencies to meet.
    Response: We understand the concern; however, we retained our 
proposal for the 30 day timeframe because ensuring a title IV-E 
agency's timely entry of removal and exit dates is critical to quality 
data. Additionally, as is the current practice in AFCARS, these errors 
are only assessed once. So, if the date was not entered in a timely 
manner, we will assess the title IV-E agency out of compliance for the 
report period the event occurred only and we will not re-assess it in 
the next and future report periods. The penalty, thus, will only be 
applied to the applicable six-month report period. We have retained 
paragraphs (b)(1) through (b)(5) as proposed in the 2015 NRPM.
Section 1355.46(c) Data File Standards
    In paragraph (c), we set the data file submission standards (timely 
submission, proper format, and acceptable cross-file) for ACF to 
determine that the title IV-E agency's AFCARS data is in compliance. In 
paragraph (c)(1), we require that the title IV-E agency submit AFCARS 
data within 45 days of the end of each six-month report period. In 
paragraph (c)(2), we require that a title IV-E agency send us its data 
files in a format that meets our specifications and submit 100 percent 
error-free data on limited basic information including title IV-E 
agency name, report period, the child's demographic information for the 
out-of-home care data file and the adoption and guardianship assistance 
data file.
    Comment: Four title IV-E agencies do not support the deadline of 30 
days after the end of the report period to submit the data file 
believing it will limit the agency's ability to provide an accurate 
data file. They stated that they would have less time to ensure that 
all data is entered, provide direction to the field on any needed data 
corrections, and test and validate the data file before submitting it 
to ACF. The commenters recommended staying with the current 45 day 
submission deadline.
    Response: We modified the regulation to allow title IV-E agencies 
up to 45 days after the end of the report period to transmit the AFCARS 
data files. However, we wish to emphasize that the purpose of this 
transmission period is to extract the data and ensure the file is in 
the proper format for transmission. Agencies should review the 
information in the system, including information used in AFCARS 
reporting, on a regular and ongoing basis in accordance with the title 
IV-B quality assurance system requirements. This is consistent with 
current practice with AFCARS.
    Comment: A handful of commenters were concerned about ACF's data 
quality requirements of 100 percent compliance with data format 
standards believing it is unlikely any title IV-E agencies will be able 
to meet these standards. In addition, there was

[[Page 90564]]

confusion by some commenters misunderstanding that we expected 100 
percent freedom from ``cross-file'' errors.
    Response: We proposed 100 percent compliance for data format 
standards only for proper format and on certain data elements specified 
in section 1355.46(c)(2) because the proper format is crucial to the 
proper transmission and receipt of the data file. The administrative 
elements (agency, date, etc.) and the basic demographic data elements 
specified in section 1355.46(c)(2) contain information that is readily 
available to the title IV-E agency and is essential to our ability to 
analyze the data and determine whether the title IV-E agency is in 
compliance with the remaining data standards. The five data elements in 
the adoption assistance data file are basic administrative data 
elements and are directly linked to calculating adoption incentive 
payments under section 473A of the Act. Also, based on our experience 
with the existing AFCARS and with the NYTD, we have found that problems 
in these data elements are often the result of minor errors that can be 
rectified easily. We therefore believe that a 100 percent data format 
compliance standard for these basic and critical data elements 
specified in section 1355.46(c)(2) is appropriate. The approach is also 
consistent with how we implemented the NYTD. We will issue guidance on 
cross-file compliance during implementation.
    Comment: One state suggested that ACF use a method similar to the 
NCANDS transmission method noting it is much simpler and more direct.
    Response: The transmission method for AFCARS is outside the scope 
of the regulations as we did not regulate the specific method used by 
AFCARS, only that it must be electronic. However, we should note that 
the current AFCARS method is in compliance with federal security 
protocols for the proper submission of data files.
    Comment: One commenter believes the data file structure needs to be 
clarified and the public should have the opportunity to comment. 
Another commenter asked if ACF will provide technical assistance or 
support to states that are unable to meet the AFCARS basic file 
standards.
    Response: As we explained in the preamble to section 1355.46(b), we 
did not regulate the technical requirements for formatting or 
transmitting the AFCARS data files because of inevitable future 
advances in technology. Instead, we will issue technical requirements 
and specifications through official ACF policy and technical bulletins. 
Further, we will consider what form of technical assistance may be 
needed by title IV-E agencies to meet the AFCARS data file submission 
standards. The approach is also consistent with the how we implemented 
the NYTD.
Section 1355.46(d) Data Quality Standards
    In paragraph (d)(1), we specify the data quality standards for the 
title IV-E agency to be in compliance with AFCARS requirements. We 
received no substantive comments on this section.
    In paragraph (d)(2), we specify the acceptable cross-file 
standards, which are that the data files must be free of cross-file 
errors that exceed the acceptable thresholds, as defined by ACF. In the 
2015 NPRM, we proposed this as paragraph (c)(3) of this section. We did 
not receive comments on this paragraph. However, to match the 
requirement in paragraph (e)(2) of this section, we moved the 
acceptable cross-file requirement to paragraph (d) with the data 
quality standards. If each data file meets the data file standards of 
paragraph (c) of this section, ACF will then determine whether each 
data file meets the data quality standards in paragraph (d) of this 
section.
Section 1355.46(e) Compliance Determination and Corrected Data
    In paragraph (e), we specify the methodology for determining 
compliance and a title IV-E agency's opportunity to submit corrected 
data when ACF has initially determined that the title IV-E agency's 
original submission does not meet the AFCARS standards. We received no 
specific comments on this section and have retained the proposed 
language with minor conforming edits.
Section 1355.46(f) Noncompliance
    In paragraph (f), we specify that a title IV-E agency has not 
complied with the AFCARS requirements if the title IV-E agency either 
does not submit corrected data files, or does not submit corrected data 
files that meet the compliance standards in paragraphs (c) and (d) of 
this section. We received no specific comments on this section and have 
retained the proposed language with minor conforming edits.
Section 1355.46(g) Other Assessments
    In paragraph (g), we explain that ACF may use other monitoring 
tools that are not explicitly mentioned in regulation to determine 
whether the title IV-E agency meets all AFCARS requirements. We 
received no specific comments on this section and have retained the 
proposed language with minor conforming edits.

Section 1355.47 Penalties

    In section 1355.47 we provide for how ACF will assess and take 
penalties for a title IV-E agency's noncompliance with AFCARS 
requirements outlined in section 1355.46.
Section 1355.47(a) Federal Funds Subject to a Penalty
    In paragraph (a), we specify the pool of funds that are subject to 
a penalty for noncompliance as required by law. We did not receive 
specific comments on paragraph (a) and have retained the proposed 
language with minor conforming edits.
Section 1355.47(b) Penalty Amounts
    In paragraphs (b)(1) and (b)(2), we specify the penalty amounts for 
noncompliance and continued noncompliance as required by section 
474(f)(2) of the Act.
    Comment: Many of commenters, particularly title IV-E agencies, do 
not support the penalty provisions as proposed in section 1355.47 and 
suggested a variety of alternatives, including phasing in the 
penalties, providing incentives, reinvesting penalties back into data 
improvements, or waiving penalties. A couple commenters believed that 
the penalty structure did not allow for a graduated or proportional 
structure to assess penalties reflective of an individual agency's 
level of compliance, or any consideration of past efforts to produce 
the required data. A few commenters supported penalties as a method to 
incentivize title IV-E agencies to fulfill their duties. One 
organization suggested applying the penalties to the optional title IV-
E programs including kinship guardianship and extended foster care.
    Response: We did not revise the penalty provisions in response to 
these comments because the penalties are required by law and the 
structure is consistent with section 474(f) of the Act. There is no 
provision in the law for incentives or reinvestment of penalties. The 
penalty structure applies to all title IV-E agencies and, we have 
retained our proposal not to apply the penalty to the optional title 
IV-E programs. We are allowing ample time for state and tribal title 
IV-E agencies to modify their systems to report quality data as 
required by the final rule.
    Comment: A couple states oppose the timeframe for corrective action 
and penalties for subsequent reporting periods and one commenter 
suggested that we allow time for system

[[Page 90565]]

improvements as part of corrective action before ACF issues a penalty.
    Response: We did not make any changes to address this comment 
because the statute specifies the time period for corrective action and 
thus we are unable to provide a lengthier timeframe for corrections to 
systems or otherwise.
    Comment: A state commenter asked if there will be technical 
assistance and support offered to title IV-E agencies that are unable 
to meet basic file standards.
    Response: We will continue to conduct AFCARS assessment reviews to 
address situations expressed by the commenter about quality data and 
engage state and tribal title IV-E agencies in technical assistance in 
all aspects of the implementation of AFCARS.
Section 1355.47(c) Penalty Reduction From Grant
    In paragraph (c), we specify that we will collect an assessed 
penalty by reducing the title IV-E agency's title IV-E foster care 
funding following ACF's notification of the final determination of 
noncompliance. We did not receive any comments on paragraph (c).
Section 1355.47(d) Appeals
    In paragraph (d), we specify that the title IV-E agency has an 
opportunity to appeal a final determination that the title IV-E agency 
is out of compliance and assessed financial penalties to the HHS 
Departmental Appeals Board (DAB). We did not receive any comments on 
paragraph (d).

VII. Regulatory Impact Analysis

Executive Order 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. The Department has determined that this final rule is 
consistent with these priorities and principles. In particular, ACF has 
determined that a regulation is the best and most cost effective way to 
implement the statutory mandate for a data collection system regarding 
children in foster care and those who exit to permanency and support 
other statutory obligations to provide oversight of child welfare 
programs. ACF consulted with the Office of Management and Budget (OMB) 
and determined that this rule does meet the criteria for a significant 
regulatory action under E.O. 12866. Thus, it was subject to OMB review.
    ACF determined that the costs to title IV-E agencies as a result of 
this rule will not be significant as defined in Executive Order 12866 
(have an annual effect on the economy of $100 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, or tribal governments or 
communities). Federal reimbursement under title IV-E will be available 
for a portion of the costs that title IV-E agencies will incur as a 
result of the revisions in this rule, depending on each agency's cost 
allocation plan, information system, and other factors. Estimated 
burden and costs to the federal government are provided below in the 
Burden estimate section, which we estimate to be $40,749,492. As a 
result of this rule, title IV-E agencies will report historical data on 
children in out-of-home care and information on legal guardianships, 
and we will have national data on Indian children as defined in ICWA.
    Alternatives Considered:
    1. ACF considered whether other existing data sets could yield 
similar information. ACF determined that 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 adopted under a title IV-E adoption 
assistance agreement.
    2. We also received state comments to the 2016 SNPRM citing they 
have few Indian children in foster care, if any. ACF considered 
alternatives to collecting ICWA-related data through AFCARS, such as 
providing an exemption from reporting, but alternative approaches are 
not feasible due to:
     AFCARS data must be comprehensive per section 479(c)(3) of 
the Act and exempting some states from reporting the ICWA-related data 
elements is not consistent with this statutory mandate, and would 
render it difficult to use this data for development of national 
policies.
     Section 474(f) of the Act provides for mandatory penalties 
on the title IV-E agency for non-compliance on AFCARS data that is 
based on the total amount expended by the title IV-E agency for 
administration of foster care activities. Therefore, we are not 
authorized to permit some states to be subject to a penalty and not 
others. In addition, allowing states an alternate submission process 
would complicate and/or prevent the assessment of penalties per Sec.  
1355.47, including penalties for failure to submit data files free of 
cross-file errors, missing, invalid, or internally inconsistent data, 
or tardy transactions for each data element of applicable records.

Regulatory Flexibility Analysis

    The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the 
Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not 
result in a significant impact on a substantial number of small 
entities. This final rule does not affect small entities because it is 
applicable only to state and tribal title IV-E agencies.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act (Pub. L. 104-4) requires agencies 
to prepare an assessment of anticipated costs and benefits before 
proposing any rule that may result in an annual expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more (adjusted annually for inflation). That 
threshold level is currently approximately $146 million. This final 
rule does not impose any mandates on state, local, or tribal 
governments, or the private sector that will result in an annual 
expenditure of $146 million or more.

Congressional Review

    This regulation is not a major rule as defined in 5 U.S.C. 8.

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 2000 (Pub. L. 106-58) requires federal agencies to determine 
whether a policy or regulation may affect family well-being. If the 
agency's determination is affirmative, then the agency must prepare an 
impact assessment addressing seven criteria specified in the law. This 
final regulation will not have an impact on family well-being as 
defined in the law.

Executive Order 13132

    Executive Order 13132 requires that federal agencies consult with 
state and local government officials in the development of regulatory 
policies with Federalism implications. Consistent with E.O. 13132 and 
Guidance for Implementing E.O. 13132 issued on

[[Page 90566]]

October 28, 1999, the Department must include in ``a separately 
identified portion of the preamble to the regulation'' a ``federalism 
summary impact statement'' (Secs. 6(b)(2)(B) & (c)(2)). The 
Department's ``federalism summary impact statement'' is as follows--
     ``A description of the extent of the agency's prior 
consultation with State and local officials''--ACF held consultation 
calls for the 2015 NPRM on February 18 and 20, 2015 and public comment 
period was open from February 9, 2015 to April 10, 2015 where we 
solicited comments via regulations.gov, email, and postal mail. ACF 
held consultation calls for the 2016 SNPRM on April 15, 22, 25, and 29, 
2016 and the public comment period was open from April 7, 2016 to May 
9, 2016 where we solicited comments via regulations.gov, email, and 
postal mail.
     ``A summary of the nature of their concerns and the 
agency's position supporting the need to issue the regulation''--As 
we've discussed in the preamble to this final rule, many commenters to 
the 2015 NPRM supported many of the revisions we proposed for AFCARS; 
however, some commenters expressed concern with the burden of 
additional data elements. Many commenters to the 2016 SNPRM supported 
collecting ICWA-related data in AFCARS and stated that it will better 
inform practice for AI/AN children. However, they also expressed 
concern with the burden of additional data elements and suggested that 
we pare down the overall number of data element to a core set that 
collects essential information related to ICWA.
     ``A statement of the extent to which the concerns of State 
and local officials have been met'' (Secs. 6(b)(2)(B) & 6(c)(2))--As we 
discuss in the section-by-section discussion preamble, we streamlined 
many data elements that we proposed in the 2015 NPRM. We also sought to 
reduce duplication by integrating the ICWA-related data elements 
proposed in the 2016 SNPRM into other sections of AFCARS. We expand on 
these comments in the section-by-section discussion.

Paperwork Reduction Act

    Under the Paperwork Reduction Act (44 U.S.C. 35, as amended) (PRA), 
all Departments are required to submit to OMB for review and approval 
any reporting or recordkeeping requirements inherent in a proposed or 
final rule. PRA rules require that ACF estimate the total burden 
created by this final rule regardless of what information is available. 
ACF provides burden and cost estimates using the best available 
information. Information collection for AFCARS is currently authorized 
under OMB number 0970-0422; however, this final rule significantly 
changes the collection requirements by requiring title IV-E agencies to 
report historical data and data related to ICWA. This final rule 
contains information collection requirements in proposed Sec.  1355.44, 
the out-of-home care data file, and Sec.  1355.45, the adoption and 
guardianship assistance data file, that the Department has submitted to 
OMB for its review. This final rule requires:
     State and tribal title IV-E agencies to report information 
on children who are in the out-of-home care reporting population per 
Sec.  1355.42(a);
     State and tribal title IV-E agencies to report information 
on children who are in the adoption assistance reporting population per 
Sec.  1355.42(b); and
     State title IV-E agencies to report ICWA-related 
information in the out-of-home care data file.
    Comments to the 2015 NPRM: State title IV-E agencies and the 
national organization representing state child welfare agencies felt 
that our burden estimates were low, but very few states provided 
estimates on burden hours or costs to implement the 2015 NPRM as a 
comparison. The comments were primarily about technical or programmer 
costs to modify the information system and did not include the work 
associated with gathering information or training. The estimates we 
received to modify a state information system ranged from 2,000 hours 
to 20,000 hours.
    Comments to the 2016 SNPRM: Overall, many states and the national 
organization representing state child welfare agencies felt that the 
burden of the 2016 SNPRM will be significantly higher than the 
estimates provided. They said that reporting ICWA-related information 
would require significant upgrades to the SACWIS or other case 
management system to be able to report the data. States said that they 
collect some information, but not all information (e.g., name of 
tribes) is in an extractable data field and it is documented in case 
narratives. They also stated there will be an increased workload due to 
manually entering information from paper court orders or case 
narratives into the system for AFCARS reporting and limited or no 
electronic exchange exists in some states between the state title IV-E 
agency and state court. One organization expressed concern that the 
2016 SNPRM burden calculations assumed all states would be equally 
impacted, and suggested that states with few Indian children, as 
defined in ICWA, be allowed to format data collection in a different 
way. This commenter also expressed that states with larger AI/AN 
population would face a large burden for staff to meet the mandates.
    Five state title IV-E agencies provided specific burden and cost 
estimates and suggestions for how to calculate the estimates for the 
2016 SNPRM. They ranged from:
     Implementation timeframe of 24 months to 3.5 years to 
design, develop, and implement system modifications.
     One-time costs of $100,000 to $803,000 to make system 
changes.
     Annual costs of $120,000 per year to enter data from court 
records.
     Increase the average hourly labor rate we used in the 2016 
SNPRM include hourly rates for programming staff, staff attorneys, and 
paralegals because they would all be working together to implement the 
requirements of the 2016 SNPRM.
     Increase the time to determine whether a child is an 
Indian child as defined in ICWA to 1.5 hours per child.
     Base the estimates on all children entering foster care 
and not limit it to those for whom the race AI/AN was indicated.
    Although ACF appreciates that these agencies provided this 
information on hourly and cost burden estimates, ACF received too few 
estimates to reference for calculating the cost and burden associated 
with this final rule. We understand the new data requirements could 
impact the time workers spend providing casework directly with children 
and families. However, this final rule reflects careful consideration 
of input received from states and tribes and balances the need for more 
current data with concerns from commenters about the burden that new 
reporting requirements represent. Thus, ACF carefully considered the 
statutory requirement in section 479(c)(1) of the Act to ``avoid 
unnecessary diversion of resources from agencies responsible for 
adoption and foster care'' and determined that the Final Rule does not 
represent an unnecessary diversion of resources. ACF provides estimates 
using the best available information.
Burden Estimate
    The following are estimates.

[[Page 90567]]



----------------------------------------------------------------------------------------------------------------
                                                                     Number of    Average burden
               Collection--AFCARS                    Number of     responses per     hours per     Total annual
                                                    respondents     respondent       response      burden hours
----------------------------------------------------------------------------------------------------------------
Recordkeeping...................................              59               2        8,204.25         968,102
Reporting.......................................              59               2              18           2,124
                                                 ---------------------------------------------------------------
    Total.......................................  ..............  ..............  ..............         970,226
----------------------------------------------------------------------------------------------------------------

    Respondents: The 59 respondents comprise 52 state title IV-E 
agencies and seven tribal title IV-E agencies, which are Indian tribes, 
tribal organizations or consortium with an approved title IV-E plan 
under section 479B of the Act.
    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, 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.
    Reporting burden: Extracting the information for AFCARS reporting 
and transmitting the information to ACF.

Annualized Cost to the Federal Government

    Federal reimbursement under title IV-E will be available for a 
portion of the costs that title IV-E agencies will incur as a result of 
the revisions proposed in this rule, depending on each agency's cost 
allocation plan, information system, and other factors. For this 
estimate, we used the 50% FFP rate.

----------------------------------------------------------------------------------------------------------------
                                                                                                     Estimate
               Collection--AFCARS                  Total annual   Average hourly    Total cost     Federal costs
                                                   burden hours     labor rate                       (50% FFP)
----------------------------------------------------------------------------------------------------------------
Recordkeeping...................................         968,102             $84     $81,320,668     $40,660,284
Reporting.......................................           2,124              84         178,416          89,208
                                                 ---------------------------------------------------------------
    Total.......................................  ..............  ..............  ..............      40,749,492
----------------------------------------------------------------------------------------------------------------

Assumptions for Estimates

    We made a number of assumptions when calculating the burden and 
costs:
     To determine the number of children for which title IV-E 
agencies will have to report in the out-of-home care data file, ACF 
used the most recent FY 2015 AFCARS data available:
    [cir] 269,509 Number of children who entered foster care during FY 
2015. Of those, 6,350 children had a reported race of AI/AN.
    [cir] We estimate the number of children to whom the ICWA-related 
data elements apply by using as a proxy those children whose race was 
reported as ``American Indian or Alaska Native'' in the most recent FY 
2015 AFCARS data available. This is the best available data we can use 
for the burden estimate of the ICWA-related information even though we 
understand that not every child of this reported race category will be 
covered under ICWA and would also include children reported by a tribal 
title IV-E agency. The state title IV-E agency must report whether all 
children who enter foster care may be Indian children as defined in 
ICWA.
     To determine the number of children for which title IV-E 
agencies must report in the adoption and guardianship assistance file, 
ACF used the most recent title IV-E Programs Quarterly Financial 
Report, CB-496, for FY 2015. 440,934 children received title IV-E 
adoption assistance and 21,173 children received guardianship 
assistance.
     For this final rule, we integrated the ICWA-related data 
elements into other sections of the regulation. Tribal title IV-E 
agencies are not required to collect the ICWA-related information.
     The state title IV-E agency will be required to collect 
information for approximately 98 data elements for all children who are 
in both the out-of-home care reporting population and adoption and 
guardianship assistance reporting population and for approximately 17 
data elements on children to whom the ICWA-related data elements apply 
in the out-of-home care reporting population.
     Tribal title IV-E agencies will be required to collect 
information for approximately 95 data elements for all children who are 
in the out-of-home care reporting population and adoption and 
guardianship assistance reporting population.
     ACF assumed that the burden for state and tribal title IV-
E agencies to modify systems is similar to how long it would take to 
make revisions to a Comprehensive Child Welfare Information Systems 
(CCWIS). Currently, 36 states have an operational SACWIS and title IV-E 
agencies will have the option to transition to or build a CCIWS under 
the revised regulations at 45 CFR 1355.50 et sq. ACF also recognizes 
that most title IV-E agencies will require revisions to electronic case 
management systems to meet the requirements of this final rule. As more 
title IV-E agencies build CCWIS, ACF anticipates it will lead to more 
efficiency in reporting and less costs and burden associated with this 
AFCARS final rule to the agencies.
     After reviewing the 2015 Bureau of Labor Statistics data 
and comments to the 2016 SNPRM to help determine the costs of the final 
rule, ACF assumed that there will be a mix of programming, management, 
caseworkers, and legal staff working to meet both the one-time and 
annual requirements of this final rule. For this estimate, we used the 
job roles of: Computer and Mathematical Operations (15-0000) with a 
hourly wage of $41.43; Social Workers (21-1020) with a mean hourly wage 
estimate of $23.88; Management Analyst (13-1111) with a mean hourly 
wage estimate of $44.12; Social and Community Service Managers (11-
9151) with a mean hourly wage estimate of $33.38; and Paralegals and 
Legal Assistants (23-2011) with a mean hourly wage estimate of $25.19. 
Thus, ACF averaged these wages to come to an average labor rate of $42. 
In order to ensure we took into account overhead costs associated with 
these labor costs, ACF doubled this rate ($84).

[[Page 90568]]

Calculations for Estimates

    Recordkeeping: Adding the bullets below produces a total of 968,102 
record keeping hours annually.
     For the out-of-home care data file, searching data 
sources, gathering information, and entering the information into the 
system will take on average 3 hours annually for all children who enter 
foster care and 10 hours for children who are Indian children as 
defined in ICWA. (3 hours x 269,509 children = 808,527 annual hours. 10 
hours x 6,350 children = 63,500 annual hours. 808,527 + 63,500 = 
872,027 total annual hours for this bullet.)
     For the adoption and guardianship assistance data file, 
updates or changes on an annual or biennial basis will take an average 
of 0.2 hours annually for records of children who have an adoption 
assistance agreement and 0.3 hours annually for children who have an 
guardianship assistance agreement for a total annual hours of 94,539. 
(0.2 hours x 440,934 children = 88,187 hours. 0.3 hours x 21,173 
children = 6,352 hours. 6,352 hours + 88,187 hours = 94,539 total 
annual burden hours for this bullet.)
     Developing or modifying procedures and systems to collect, 
validate, and verify the information and adjusting existing ways to 
comply with AFCARS requirements will take on average 230 hours 
annually.
     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 
will take on average 1,306 hours annually.
    Reporting: Extracting the information for AFCARS reporting and 
transmitting the information to ACF will take on average 18 hours.
    In the above estimates, ACF acknowledges: (1) ACF has used average 
figures for title IV-E agencies of very different sizes and of which, 
some states may have larger populations of children served than other 
agencies, (2) these are rough estimates of the burden because state 
title IV-E agencies have not been required previously to report ICWA-
related information in AFCARS, and (3) as described, ACF has limited 
information to use in making these estimates.
    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. This does not affect the deadline for 
the public to comment to the Department on the proposed regulations. 
Written comments to OMB or the proposed 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 
OIRA_submission@omb.eop.gov. Please mark faxes and emails to the 
attention of the desk officer for ACF.

VIII. Tribal Consultation Statement

    ACF is committed to consulting with Indian tribes and tribal 
leadership to the extent practicable and permitted by law, prior to 
promulgating any regulation that has tribal implications. As we 
developed this rule, ACF engaged with tribes through multiples means. 
The requirements in this final rule were informed by consultations with 
and comments from tribal representatives.
    Starting mid-2015, we began tribal consultation, conducted in 
accordance with the ACF Tribal Consultation Policy (76 FR 55678) with 
tribal representatives to obtain input on proposing additional AFCARS 
data elements related to ICWA. There was a conference call on May 1, 
2015, that was co-facilitated by CB Associate Commissioner and the 
Chairperson of the ACF Tribal Advisory Committee, who also serves as 
the Vice Chair of the Jamestown S'Klallam Tribal Council. Tribes were 
informed of these consultations and conference calls through letters to 
tribal leaders. Comments were solicited during the call to determine 
essential data elements that state title IV-E agencies should report to 
AFCARS including, but not limited to: Whether the requirements of ICWA 
were applied to a child; notice for child welfare proceedings; active 
efforts to prevent removal or to reunify the Indian child with the 
child's biological or adoptive parents or Indian custodian; placement 
preferences in ICWA; and terminations of parental rights for an Indian 
child. Tribal representatives did not provide specific suggestions on 
the call, but noted that they would provide formal comments on the 2016 
SNPRM when it was issued.
    In addition to the May 2015 tribal consultation, we reviewed 
comments to the 2015 NPRM that suggested we include ICWA-related data 
elements and we used these comments to help inform the 2016 SNPRM. We 
received 45 comments to the 2015 NPRM that recommended collecting basic 
information about the applicability of ICWA for children in out-of-home 
care, including: Identification of American Indian and Alaska Native 
children and their family structure, tribal notification and 
intervention in state court proceedings, the relationship of the foster 
parents and other providers to the child, decisions to place a child in 
out-of-home care (including data on active efforts and continued 
custody), whether a placement was licensed by an Indian tribe, whether 
the placement preferences in ICWA were followed, and termination of 
parental rights (both voluntary and involuntary).
    After the 2016 SNPRM was published, ACF conducted additional 
consultations with tribal representatives and the public via conference 
calls on April 22, 25, and 27, 2016 during the public comment period. 
Tribes were informed of these consultations and conference calls 
through letters to tribal leaders and emails on ACF's tribal list 
serves. Much of the dialogue from call attendees was supportive of the 
data elements proposed in the 2016 SNPRM stating they are an important 
step to allowing tribes, states, and federal agencies the ability to 
develop a more detailed understanding of the unique experiences, needs, 
and barriers to permanency for AI/AN children. There was also 
discussion regarding how state title IV-E agencies will implement 
specific data elements around qualified expert witnesses, how state 
title IV-E agencies will share the data gathered with tribes, and the 
process for determining whether a state title IV-E agency will be found 
in non-compliance with data collection. Throughout the calls, we 
encouraged tribal representatives to submit written comments during the 
public comment period. We received 41 comments from tribes and 11 
comments from organizations representing tribal interests, many of 
which were co-signed by multiple tribes. We addressed public comments 
in the section-by-section discussion preamble. This final rule was 
informed by these consultations and comments.

List of Subjects in 45 CFR Part 1355

    Adoption and foster care, Child welfare, Grant programs--social 
programs.

    (Catalog of Federal Domestic Assistance Program Number 93.658, 
Foster Care Maintenance; 93.659, Adoption Assistance; 93.645, Child 
Welfare Services--State Grants).


[[Page 90569]]


    Dated: October 11, 2016.
Mark H. Greenberg,
Acting Assistant Secretary for Children and Families.
    Approved: October 14, 2016.
Sylvia M. Burwell,
Secretary.

    For the reasons set forth in the preamble, we 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.  1355.40 by redesignating paragraphs (a) through (e) as 
(b) through (f), adding a new paragraph (a), revising the second 
sentence of newly redesignated paragraph (b)(1), and revising newly 
redesignated paragraph (f) to read as follows:


Sec.  1355.40  Foster care and adoption data collection.

    (a) Scope. State and tribal title IV-E agencies must follow the 
requirements of this section and Appendices A through E of part 1355 
until September 30, 2019. As of October 1, 2019, state and tribal title 
IV-E agencies must comply with Sec. Sec.  1355.41 through 1355.47.
    (b) * * *
    (1) * * * The data reporting system must meet the requirements of 
Sec.  1355.40(c) and electronically report certain data regarding 
children in foster care and adoption. * * *
* * * * *
    (f) Substantial noncompliance. Failure by a title IV-E agency to 
meet any of the standards described in paragraphs (b) through (e) of 
this section is considered a substantial failure to meet the 
requirements of the title IV-E plan.
* * * * *


Sec.  1355.40  [Removed and Reserved]

0
3. Effective October 1, 2019, remove and reserve Sec.  1355.40.

0
4. Add Sec. Sec.  1355.41 through 1355.47 to read as follows:


Sec.  1355.41  Scope of the Adoption and Foster Care Analysis and 
Reporting System.

    (a) This section applies to state and tribal title IV-E agencies 
unless indicated for state title IV-E agencies only.
    (b) An agency described in paragraph (a) of this section must 
report information on the characteristics and experiences of a child in 
the reporting populations described in Sec.  1355.42. The title IV-E 
agency must submit the information collected to ACF on a semi-annual 
basis in an out-of-home care data file and adoption assistance data 
file as required in Sec.  1355.43, pertaining to information described 
in Sec. Sec.  1355.44 and 1355.45 and in a format according to ACF's 
specifications.
    (c) Definitions. (1) Terms in 45 CFR 1355.41 through 1355.47 are 
defined as they appear in 45 CFR 1355.20, except that for purposes of 
data elements related to the Indian Child Welfare Act of 1978 (ICWA), 
terms that appear in Sec.  1344.44(b)(3) through (b)(8), (c)(3), 
(c)(4), (c)(6), (c)(7), (d)(3), (e)(8) through (e)(11), (f)(10), and 
(h)(20) through (h)(23) are defined as they appear in 25 CFR 23.2 and 
25 U.S.C. 1903.
    (2) For state title IV-E agencies only: If the state title IV-E 
agency indicated ``yes'' to Sec.  1355.44(b)(4) or indicated ``yes, 
ICWA applies'' to Sec.  1355.44(b)(5), for Sec.  1355.44(c)(1), (c)(2), 
(d)(4), and (d)(5), the term ``legal guardian'' includes an Indian 
custodian as defined in ICWA at 25 U.S.C. 1903 if the Indian custodian 
has legal responsibility for the child.


Sec.  1355.42  Reporting populations.

    (a) Out-of-home care reporting population. (1) A title IV-E agency 
must report a child of any age who is in out-of-home care for more than 
24 hours. The out-of-home care reporting population includes a child in 
the following situations:
    (i) A child in foster care as defined in Sec.  1355.20.
    (ii) A child on whose behalf title IV-E foster care maintenance 
payments are made and who is under the placement and care 
responsibility of another public agency or an Indian tribe, tribal 
organization or consortium with which the title IV-E agency has an 
agreement pursuant to section 472(a)(2)(B)(ii) of the Act.
    (iii) A child who runs away or whose whereabouts are unknown at the 
time the child is placed under the placement and care responsibility of 
the title IV-E agency.
    (2) Once a child enters the out-of-home care reporting population, 
the child remains in the out-of-home care reporting population through 
the end of the report period in which the title IV-E agency's placement 
and care responsibility ends, or a child's title IV-E foster care 
maintenance payment pursuant to a title IV-E agreement per section 
472(a)(2) of the Act ends, regardless of any subsequent living 
arrangement.
    (b) Adoption and guardianship assistance reporting population. (1) 
The title IV-E agency must include in the adoption and guardianship 
assistance reporting population any child who is:
    (i) In a finalized adoption under a title IV-E adoption assistance 
agreement pursuant to section 473(a) of the Act with the reporting 
title IV-E agency that is or was in effect at some point during the 
current report period; or
    (ii) In a legal guardianship under a title IV-E guardianship 
assistance agreement pursuant to section 473(d) of the Act with the 
reporting title IV-E agency that is or was in effect at some point 
during the current report period.
    (2) A child remains in the adoption or guardianship assistance 
reporting population through the end of the report period in which the 
title IV-E agreement ends or is terminated.


Sec.  1355.43  Data reporting requirements.

    (a) Report periods and deadlines. There are two six-month report 
periods based on the Federal fiscal year: October 1 to March 31 and 
April 1 to September 30. The title IV-E agency must submit the out-of-
home care and adoption assistance data files to ACF within 45 days of 
the end of the report period (i.e., by May 15 and November 14). If the 
reporting deadline falls on a weekend, the title IV-E agency has 
through the end of the following Monday to submit the data file.
    (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) and (b).
    (2) Except as provided in paragraph (b)(3) of this section, the 
title IV-E agency must report the most recent information and all 
historical information for the applicable data elements described in 
Sec.  1355.44(c) through (h).
    (3) For a child who had an out-of-home care episode(s) as defined 
in Sec.  1355.42(a) prior to October 1, 2019, the title IV-E agency 
must report only the information for the data elements described in 
Sec.  1355.44(d)(1), (g)(1) and (g)(3) for the out-of-home care 
episode(s) that occurred prior to October 1, 2019.
    (c) Adoption and guardianship assistance data file. A title IV-E 
agency must report the most recent information for the applicable data 
elements in Sec.  1355.45 that pertains to each child in the adoption 
and guardianship assistance reporting population on the last day of the 
report period.

[[Page 90570]]

    (d) Missing information. If the title IV-E agency fails to collect 
the information for a data element, the title IV-E agency must report 
the element as blank or otherwise missing. The title IV-E agency is not 
permitted to default or map missing information that was not collected 
to a valid response option.
    (e) Electronic submission. The title IV-E agency must submit the 
required data files electronically and in a format according to ACF's 
specifications.
    (f) Record retention. The title IV-E agency must retain all records 
necessary to comply with the data requirements in Sec. Sec.  1355.41 
through 1355.45. The title IV-E agency's retention of such records is 
not limited to the requirements of 45 CFR 92.42(b) and (c).


Sec.  1355.44  Out-of-home care data file elements.

    (a) General information. (1) Title IV-E agency. Indicate the title 
IV-E agency responsible for submitting the AFCARS data in a format 
according to ACF's specifications.
    (2) Report date. The report date corresponds with the end of the 
report period. Indicate the last month and the year of the report 
period.
    (3) Local agency. Indicate the local county, jurisdiction or 
equivalent unit that has primary responsibility for the child in a 
format according to ACF's specifications.
    (4) Child record number. Indicate the child's record number. This 
is an encrypted, unique person identification number that is the same 
for the child, no matter where the child lives while in the placement 
and care responsibility of the title IV-E agency in out-of-home care 
and across all report periods and episodes. The title IV-E agency must 
apply and retain the same encryption routine or method for the person 
identification number across all report periods. The record number must 
be encrypted in accordance with ACF standards.
    (b) Child information--(1) Child's date of birth. Indicate the 
month, day and year of the child's birth. If the actual date of birth 
is unknown because the child has been abandoned, provide an estimated 
date of birth. Abandoned means that the child was left alone or with 
others and the identity of the parent(s) or legal guardian(s) is 
unknown and cannot be ascertained. This includes a child left at a 
``safe haven.''
    (2)(i) Child's gender. Indicate whether the child is ``male'' or 
``female,'' as appropriate.
    (ii) Child's sexual orientation. For children age 14 and older, 
indicate whether the child self identifies as ``straight or 
heterosexual,'' ``gay or lesbian,'' ``bisexual,'' ``don't know,'' 
``something else,'' or ``decline,'' if the child declined to provide 
the information. Indicate ``not applicable'' for children age 13 and 
under.
    (3) Reason to know a child is an ``Indian Child'' as defined in the 
Indian Child Welfare Act. 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 in 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 who is the subject of the proceeding. Indicate ``yes'' or ``no.''
    (vi) Indicate whether the child is a member of or eligible for 
membership in an Indian tribe. Indicate ``yes,'' ``no,'' or 
``unknown.''
    (vii) 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,'' ``no,'' or ``unknown.''
    (4) Application of ICWA. For state title IV-E agencies only: 
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 indicated ``yes,'' 
then the state title IV-E agency must complete paragraphs (b)(4)(i) and 
(ii). If the state title IV-E agency indicated ``no,'' then the state 
title IV-E agency must leave paragraphs (b)(4)(i) and (ii) of this 
section blank.
    (i) 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.
    (ii) Indicate all federally recognized Indian tribe (s) that may 
potentially be the Indian child's tribe(s). The title IV-E agency must 
submit the information in a format according to ACF's specifications.
    (5) Court determination that ICWA applies. For state title IV-E 
agencies only: 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 
indicated ``yes, ICWA applies,'' the state title IV-E agency must 
complete paragraphs (b)(5)(i) and (ii). If the state title IV-E agency 
indicated ``no, ICWA does not apply'' or ``no court determination,'' 
the state title IV-E agency must leave paragraphs (b)(5)(i) and (ii) of 
this section blank.
    (i) Indicate the date that the court determined that ICWA applies.
    (ii) Indicate the Indian tribe that the court determined is the 
Indian child's tribe for ICWA purposes. The title IV-E agency must 
submit the information in a format according to ACF's specifications.
    (6) Notification. State title IV-E agencies only: If the state 
title IV-E agency indicated ``yes'' to paragraph (b)(4) or indicated 
``yes, ICWA applies'' to paragraph (b)(5), the state title IV-E agency 
must complete paragraphs (b)(6)(i) through (iii). Otherwise, leave 
paragraphs (b)(6)(i) through (iii) of this section blank.
    (i) Indicate whether the Indian child's parent or Indian custodian 
was sent legal notice more than 10 days prior to the first child 
custody proceeding in accordance with 25 U.S.C. 1912(a). Indicate 
``yes'' or ``no.''
    (ii) Indicate whether the Indian child's tribe(s) was sent legal 
notice more than 10 days prior to the first child custody proceeding in 
accordance with 25 U.S.C. 1912(a). Indicate ``yes'', ``no'' or ``the 
child's Indian tribe is unknown''.
    (iii) Indicate the Indian tribe(s) that were sent notice for a 
child custody proceeding as required in ICWA at 25 U.S.C. 1912(a). The 
title IV-E agency must report the information in a format according to 
ACF's specifications.
    (7) Request to transfer to tribal court. For state title IV-E 
agencies only: If the state title IV-E agency indicated ``yes'' to 
paragraph (b)(4) or indicated ``yes, ICWA applies'' to paragraph 
(b)(5), indicate whether either parent, the Indian custodian, or the 
Indian child's tribe requested, orally on the record or in writing, 
that the state court transfer a foster-care or termination-of-parental 
rights proceeding to the jurisdiction of the Indian child's tribe, in 
accordance

[[Page 90571]]

with 25 U.S.C. 1911(b), at any point during the report period. Indicate 
``yes'' or ``no.'' If the state title IV-E agency indicated ``yes,'' 
then the state title IV-E agency must complete paragraph (b)(8) of this 
section. If the state title IV-E agency indicated ``no,'' the state 
title IV-E agency must leave paragraph (b)(8) of this section blank.
    (8) Denial of transfer. For state title IV-E agencies only: If the 
state title IV-E agency indicated ``yes'' to paragraph (b)(7), indicate 
whether the state court denied the request to transfer the case to 
tribal jurisdiction. Indicate ``yes'' or ``no.'' If the state title IV-
E agency indicated ``yes,'' then the state title IV-E agency must 
indicate in paragraphs (b)(8)(i) through (iii) of this section whether 
each reason for denial ``applies'' or ``does not apply.'' Otherwise 
leave these paragraphs blank.
    (i) Either of the parents objected to transferring the case to the 
tribal court.
    (ii) The tribal court declined the transfer to the tribal court.
    (iii) The state court determined good cause exists for denying the 
transfer to the tribal court.
    (9) Child's race. In general, a child's race is determined by the 
child, the child's parent(s) or legal guardian(s). Indicate whether 
each race category listed in the data elements described in paragraphs 
(b)(9)(i) through (viii) of this section applies with a ``yes'' or 
``no.''
    (i) Race--American Indian or Alaska Native. An American Indian or 
Alaska Native child has origins in any of the original peoples of North 
or South America (including Central America), and maintains tribal 
affiliation or community attachment.
    (ii) Race--Asian. An Asian child has origins in any of the original 
peoples of the Far East, Southeast Asia or the Indian subcontinent 
including, for example, Cambodia, China, India, Japan, Korea, Malaysia, 
Pakistan, the Philippine Islands, Thailand and Vietnam.
    (iii) Race--Black or African American. A Black or African American 
child has origins in any of the black racial groups of Africa.
    (iv) Race--Native Hawaiian or Other Pacific Islander. A Native 
Hawaiian or Other Pacific Islander child has origins in any of the 
original peoples of Hawaii, Guam, Samoa or other Pacific Islands.
    (v) Race--White. A white child has origins in any of the original 
peoples of Europe, the Middle East or North Africa.
    (vi) Race--unknown. The child or parent or legal guardian does not 
know or is unable to communicate the race, or at least one race of the 
child.
    (vii) Race--abandoned. The child's race is unknown because the 
child has been abandoned. Abandoned means that the child was left alone 
or with others and the identity of the parent(s) or legal guardian(s) 
is unknown and cannot be ascertained. This includes a child left at a 
``safe haven.''
    (viii) Race--declined. The child or parent(s) or legal guardian(s) 
has declined to identify a race.
    (10) Child's Hispanic or Latino ethnicity. In general, a child's 
ethnicity is determined by the child or the child's parent(s) or legal 
guardian(s). A child is of Hispanic or Latino ethnicity if the child is 
a person of Cuban, Mexican, Puerto Rican, South or Central American or 
other Spanish culture or origin, regardless of race. Indicate whether 
this category applies with a ``yes'' or ``no.'' If the child or the 
child's parent(s) or legal guardian(s) does not know or is unable to 
communicate whether the child is of Hispanic or Latino ethnicity, 
indicate ``unknown.'' If the child is abandoned indicate ``abandoned.'' 
Abandoned means that the child was left alone or with others and the 
identity of the parent(s) or legal guardian(s) is unknown and cannot be 
ascertained. This includes a child left at a ``safe haven.'' If the 
child or the child's parent(s) or legal guardian(s) refuses to identify 
the child's ethnicity, indicate ``declined.''
    (11)(i) Health assessment. Indicate whether the child had a health 
assessment during the current out-of-home care episode. This assessment 
could include an initial health screening or any follow-up health 
screening per section 422(b)(15)(A) of the Act. Indicate ``yes'' or 
``no.'' If the title IV-E agency indicated ``yes,'' the title IV-E must 
complete paragraphs (b)(11)(ii) and (b)(12); otherwise leave paragraphs 
(b)(11)(ii) and (b)(12) of this section blank.
    (ii) Date of health assessment. Indicate the month, day, and year 
of the child's most recent health assessment, if the title IV-E agency 
reported ``yes'' in paragraph (b)(11)(i) of this section; otherwise 
leave this paragraph blank.
    (12) Timely health assessment. Indicate whether the date reported 
in paragraph (b)(11)(ii) is within the timeframes for initial and 
follow-up health screenings established by the title IV-E agency per 
section 422(b)(15)(A) of the Act. Indicate ``yes'' or ``no.'' If the 
title IV-E agency reported ``no'' in paragraph (b)(11)(i) of this 
section, the title IV-E agency must leave this paragraph blank.
    (13) Health, behavioral or mental health conditions. Indicate 
whether the child was diagnosed by a qualified professional, as defined 
by the state or tribe, as having a health, behavioral or mental health 
condition listed below, prior to or during the child's current out-of-
home care episode as of the last day of the report period. Indicate 
``child has a diagnosed condition'' if a qualified professional has 
made such a diagnosis and for each data element described in paragraphs 
(b)(13)(i) through (xii) of this section indicate ``existing 
condition,'' ``previous condition'' or ``does not apply,'' as 
applicable. Indicate ``no exam or assessment conducted'' if a qualified 
professional has not conducted a medical exam or assessment of the 
child and leave paragraphs (b)(13)(i) through (xii) blank. Indicate 
``exam or assessment conducted and none of the conditions apply'' if a 
qualified professional has conducted a medical exam or assessment and 
has concluded that the child does not have one of the conditions listed 
below and leave paragraphs (b)(13)(i) through (xii) blank. Indicate 
``exam or assessment conducted but results not received'' if a 
qualified professional has conducted a medical exam or assessment but 
the title IV-E agency has not yet received the results of such an exam 
or assessment and leave paragraphs (b)(13)(i) through (xii) blank.
    (i) Intellectual disability. The child has, or had previously, 
significantly sub-average general cognitive and motor functioning 
existing concurrently with deficits in adaptive behavior manifested 
during the developmental period that adversely affect the child's 
socialization and learning.
    (ii) Autism spectrum disorder. The child has, or had previously, a 
neurodevelopment disorder, characterized by social impairments, 
communication difficulties, and restricted, repetitive, and stereotyped 
patterns of behavior. This includes the range of disorders from 
autistic disorder, sometimes called autism or classical autism spectrum 
disorder, to milder forms known as Asperger syndrome and pervasive 
developmental disorder not otherwise specified.
    (iii) Visual impairment and blindness. The child has, or had 
previously, a visual impairment that may adversely affects the day-to-
day functioning or educational performance, such as blindness, 
amblyopia, or color blindness.
    (iv) Hearing impairment and deafness. The child has, or had 
previously, an impairment in hearing, whether permanent or fluctuating, 
that adversely affects the child's day-to-day functioning and 
educational performance.
    (v) Orthopedic impairment or other physical condition. The child 
has, or

[[Page 90572]]

had previously, a physical deformity, such as amputations and fractures 
or burns that cause contractures, or an orthopedic impairment, 
including impairments caused by a congenital anomalies or disease, such 
as cerebral palsy, spina bifida, multiple sclerosis, or muscular 
dystrophy.
    (vi) Mental/emotional disorders. The child has, or had previously, 
one or more mood or personality disorders or conditions over a long 
period of time and to a marked degree, such as conduct disorder, 
oppositional defiant disorder, emotional disturbance, anxiety disorder, 
obsessive-compulsive disorder, or eating disorder.
    (vii) Attention deficit hyperactivity disorder. The child has, or 
had previously, a diagnosis of the neurobehavioral disorders of 
attention deficit or hyperactivity disorder (ADHD) or attention deficit 
disorder (ADD).
    (viii) Serious mental disorders. The child has, or had previously, 
a diagnosis of a serious mental disorder or illness, such as bipolar 
disorder, depression, psychotic disorders, or schizophrenia.
    (ix) Developmental delay. The child has been assessed by 
appropriate diagnostic instruments and procedures and is experiencing 
delays in one or more of the following areas: physical development or 
motor skills, cognitive development, communication, language, or speech 
development, social or emotional development, or adaptive development.
    (x) Developmental disability. The child has, or had previously been 
diagnosed with a developmental disability as defined in the 
Developmental Disabilities Assistance and Bill of Rights Act of 2000 
(Pub. L. 106-402), section 102(8). This means a severe, chronic 
disability of an individual that is attributable to a mental or 
physical impairment or combination of mental and physical impairments 
that manifests before the age of 22, is likely to continue indefinitely 
and results in substantial functional limitations in three or more 
areas of major life activity. Areas of major life activity include: 
Self-care; receptive and expressive language; learning; mobility; self-
direction; capacity for independent living; and economic self-
sufficiency; and reflects the individual's need for a combination and 
sequence of special, interdisciplinary, or generic services, 
individualized supports or other forms of assistance that are of 
lifelong or extended duration and are individually planned and 
coordinated. If a child is given the diagnosis of ``developmental 
disability,'' do not indicate the individual conditions that form the 
basis of this diagnosis separately in other data elements.
    (xi) Other diagnosed condition. The child has, or had previously, a 
diagnosed condition or other health impairment other than those 
described above, which requires special medical care, such as asthma, 
diabetes, chronic illnesses, a diagnosis as HIV positive or AIDS, 
epilepsy, traumatic brain injury, other neurological disorders, speech/
language impairment, learning disability, or substance use issues.
    (14) School enrollment. Indicate whether the child is a full-time 
student at and enrolled in (or in the process of enrolling in) 
``elementary'' or ``secondary'' education, or is a full or part-time 
student at and enrolled in ``post-secondary education or training'' or 
``college,'' as of the earlier of the last day of the report period or 
the day of exit for a child exiting out-of-home care prior to the end 
of the report period. A child is still considered enrolled in school if 
the child would otherwise be enrolled in a school that is currently out 
of session. An ``elementary or secondary school student'' is defined in 
section 471(a)(30) of the Act as a child that is: enrolled (or in the 
process of enrolling) in an institution which provides elementary or 
secondary education, as determined under the law of the state or other 
jurisdiction in which the institution is located; instructed in 
elementary or secondary education at home in accordance with a home 
school law of the state or other jurisdiction in which the home is 
located; in an independent study elementary or secondary education 
program in accordance with the law of the state or other jurisdiction 
in which the program is located, which is administered by the local 
school or school district; or incapable of attending school on a full-
time basis due to the medical condition of the child, which 
incapability is supported by a regularly updated information in the 
case plan of the child. Enrollment in ``post-secondary education or 
training'' refers to full or part-time enrollment in any post-secondary 
education or training, other than an education pursued at a college or 
university. Enrollment in ``college'' refers to a child that is 
enrolled full or part-time at a college or university. If child has not 
reached compulsory school age, indicate ``not school-age.'' If the 
child has reached compulsory school-age, but is not enrolled or is in 
the process of enrolling in any school setting full-time, indicate 
``not enrolled.''
    (15) Educational level. Indicate the highest educational level from 
kindergarten to college or post-secondary education/training completed 
by the child as of the last day of the report period. If child has not 
reached compulsory school-age, indicate ``not school-age.'' Indicate 
``kindergarten'' if the child is currently in or about to begin 1st 
grade. Indicate ``1st grade'' if the child is currently in or about to 
begin 2nd grade. Indicate ``2nd grade'' if the child is currently in or 
about to begin 3rd grade. Indicate ``3rd grade'' if the child is 
currently in or about to begin 4th grade. Indicate ``4th grade'' if the 
child is currently in or about to begin 5th grade. Indicate ``5th 
grade'' if the child is currently in or about to begin 6th grade. 
Indicate ``6th grade'' if the child is currently in or about to begin 
7th grade. Indicate ``7th grade'' if the child is currently in or about 
to begin 8th grade. Indicate ``8th grade'' if the child is currently in 
or about to begin 9th grade. Indicate ``9th grade'' if the child is 
currently in or about to begin 10th grade. Indicate ``10th grade'' if 
the child is currently in or about to begin 11th grade. Indicate ``11th 
grade'' if the child is currently in or about to begin 12th grade. 
Indicate ``12th grade'' if the child has graduated from high school. 
Indicate ``GED'' if the child has completed a general equivalency 
degree or other high school equivalent. Indicate ``Post-secondary 
education or training'' if the child has completed any post-secondary 
education or training, including vocational training, other than an 
education pursued at a college or university. Indicate ``College'' if 
the child has completed at least a semester of study at a college or 
university.
    (16) Educational stability. Indicate if the child is enrolled or is 
in the process of enrolling in a new elementary or secondary school 
prompted by an initial placement after entry into foster care or a 
placement change during the report period with ``yes'' or ``no'' as 
appropriate. If ``yes,'' indicate which of the applicable reason(s) for 
the change in enrollment as described in paragraphs (b)(16)(i) through 
(vii) of this section ``applies'' or ``does not apply;'' if ``no,'' the 
title IV-E agency must leave those data elements blank.
    (i) Proximity. The child enrolled in a new school because of the 
distance to his or her former school.
    (ii) District/zoning rules. The child enrolled in a new school 
because county or jurisdictional law or regulations prohibited 
attendance at former school.
    (iii) Residential facility. The child enrolled in a new school 
because he or she formerly attended school on the campus of a 
residential facility.
    (iv) Services/programs. The child enrolled in a new school to 
participate in services or programs (academic,

[[Page 90573]]

behavioral or supportive services) not offered at former school.
    (v) Child request. The child enrolled in a new school because he or 
she requested to leave former school and enroll in new school.
    (vi) Parent/Legal guardian request. The child enrolled in a new 
school because his or her parent(s) or legal guardian(s) requested for 
the child to leave the former school and enroll in a new school.
    (vii) Other. The child enrolled in a new school for a reason other 
than those detailed in paragraphs (b)(13)(i) through (vi) of this 
section.
    (17) Pregnant or parenting. (i) Indicate whether the child is 
pregnant as of the end of the report period. Indicate ``yes'' or 
``no.''
    (ii) Indicate whether the child has ever fathered or bore a child. 
Indicate ``yes'' or ``no.''
    (iii) Indicate whether the child and his/her child(ren) are placed 
together at any point during the report period, if the response in 
paragraph (b)(17)(ii) is ``yes.'' Indicate ``yes,'' ``no,'' or ``not 
applicable'' if the response in paragraph (b)(17)(ii) of this section 
is ``no.''
    (18) Special education. Indicate whether the child has an 
Individualized Education Program (IEP) as defined in section 614(d)(1) 
of Part B of Title I of the Individuals with Disabilities Education Act 
(IDEA) and implementing regulations, or an Individualized Family 
Service Program (IFSP) as defined in section 636 of Part C of Title I 
of IDEA and implementing regulations, as of the end of the report 
period. Indicate ``yes'' if the child has either an IEP or an IFSP or 
``no'' if the child has neither.
    (19) Prior adoption. Indicate whether the child experienced a prior 
legal adoption before the current out-of-home care episode. Include any 
public, private or independent adoption in the United States or 
adoption in another country and tribal customary adoptions. Indicate 
``yes,'' ``no'' or ``abandoned'' if the information is unknown because 
the child has been abandoned. Abandoned means that the child was left 
alone or with others and the identity of the parent(s) or legal 
guardian(s) is unknown and cannot be ascertained. This includes a child 
left at a ``safe haven.'' If the child has experienced a prior legal 
adoption, the title IV-E agency must complete paragraphs (b)(19)(i) and 
(ii) of this section; otherwise the title IV-E agency must leave those 
data elements blank.
    (i) Prior adoption date. Indicate the month and year that the most 
recent prior adoption was finalized. In the case of a prior 
intercountry adoption where the adoptive parent(s) readopted the child 
in the United States, the title IV-E agency must provide the date of 
the adoption (either the original adoption in the home country or the 
re-adoption in the United States) that is considered final in 
accordance with applicable laws.
    (ii) Prior adoption intercountry. Indicate whether the child's most 
recent prior adoption was an intercountry adoption, meaning that the 
child's prior adoption occurred in another country or the child was 
brought into the United States for the purposes of finalizing the prior 
adoption. Indicate ``yes'' or ``no.''
    (20)(i) Prior guardianship. Indicate whether the child experienced 
a prior legal guardianship before the current out-of-home care episode. 
Include any public, private or independent guardianship(s) in the 
United States that meets the definition in section 475(7) of the Act. 
This includes any judicially created relationship between a child and 
caretaker which is intended to be permanent and self-sustaining as 
evidenced by the transfer to the caretaker of the following parental 
rights with respect to the child: Protection, education, care and 
control, custody, and decision making. Indicate ``yes,'' ``no,'' or 
``abandoned'' if the information is unknown because the child has been 
abandoned. Abandoned means that the child was left alone or with others 
and the identity of the parent(s) or legal guardian(s) is unknown and 
cannot be ascertained. This includes a child left at a ``safe haven.'' 
If the child has experienced a prior legal guardianship, the title IV-E 
agency must complete paragraph (b)(20)(ii); otherwise the title IV-E 
agency must leave it blank.
    (ii) Prior guardianship date. Indicate the month and year that the 
most recent prior guardianship became legalized.
    (21) Child financial and medical assistance. Indicate whether the 
child received financial and medical assistance at any point during the 
six-month report period. Indicate ``child has received support/
assistance'' if the child was the recipient of such assistance during 
the report period, and indicate which of the following sources of 
support described in paragraphs (b)(21)(i) through (xiii) of this 
section ``applies'' or ``does not apply.'' Indicate ``no support/
assistance received'' if none of these apply.
    (i) SSI or Social Security benefits. The child is receiving support 
from Supplemental Security Income (SSI) or other Social Security 
benefits under title II or title XVI of the Act.
    (ii) Title XIX Medicaid. The child is eligible for and may be 
receiving assistance under the state's title XIX program for medical 
assistance, including any benefits through title XIX waivers or 
demonstration programs.
    (iii) Title XXI SCHIP. The child is eligible for and receiving 
assistance under a state's Children's Health Insurance Program (SCHIP) 
under title XXI of the Act, including any benefits under title XXI 
waivers or demonstration programs.
    (iv) State/Tribal adoption assistance. The child is receiving an 
adoption subsidy or other adoption assistance paid for solely by the 
state or Indian tribe.
    (v) State/Tribal foster care. The child is receiving a foster care 
payment that is solely funded by the state or Indian tribe.
    (vi) Child support. Child support funds are being paid to the title 
IV-E agency for the benefit of the child by assignment from the 
receiving parent.
    (vii) Title IV-E adoption subsidy. The child is determined eligible 
for a title IV-E adoption assistance subsidy.
    (viii) Title IV-E guardianship assistance. The child is determined 
eligible for a title IV-E guardianship assistance subsidy.
    (ix) Title IV-A TANF. The child is living with relatives who are 
receiving a Temporary Assistance for Needy Families (TANF) cash 
assistance payment on behalf of the child.
    (x) Title IV-B. The child's living arrangement is supported by 
funds under title IV-B of the Act.
    (xi) SSBG. The child's living arrangement is supported by funds 
under title XX of the Act.
    (xii) Chafee Foster Care Independence Program. The child is living 
independently and is supported by funds under the John F. Chafee Foster 
Care Independence Program.
    (xiii) Other. The child is receiving financial support from another 
source not previously listed above.
    (22) Title IV-E foster care during report period. Indicate whether 
a title IV-E foster care maintenance payment was paid on behalf of the 
child at any point during the report period that is claimed under title 
IV-E foster care with a ``yes'' or ``no,'' as appropriate. Indicate 
``yes'' if the child has met all eligibility requirements of section 
472(a) of the Act and the title IV-E agency has claimed, or intends to 
claim, Federal reimbursement for foster care maintenance payments made 
on the child's behalf during the report period.
    (23) Total number of siblings. Indicate the total number of 
siblings of the child. A sibling to the child is his or her brother or 
sister by biological, legal, or marital connection. Do not include the 
child who is subject of this record in the total number. If the child 
does not have

[[Page 90574]]

any siblings, the title IV-E agency must indicate ``0.'' If the title 
IV-E agency indicates ``0,'' the title IV-E agency must leave 
paragraphs (b)(24) and (b)(25) of this section blank.
    (24) Siblings in foster care. Indicate the number of siblings of 
the child who are in foster care as defined in Sec.  1355.20. A sibling 
to the child is his or her brother or sister by biological, legal, or 
marital connection. Do not include the child who is subject of this 
record in the total number. If the child does not have any siblings, 
the title IV-E agency must leave this paragraph blank. If the child has 
siblings, but they are not in foster care as defined in Sec.  1355.20, 
the title IV-E agency must indicate ``0.'' If the title IV-E agency 
reported ``0,'' leave paragraph (b)(25) of this section blank.
    (25) Siblings in living arrangement. Indicate the number of 
siblings of the child who are in the same living arrangement as the 
child, on the last day of the report period. A sibling to the child is 
his or her brother or sister by biological, legal, or marital 
connection. Do not include the child who is subject of this record in 
the total number. If the child does not have any siblings, the title 
IV-E agency must leave this paragraph blank. If the child has siblings, 
but they are not in the same living arrangement as the child, the title 
IV-E agency must indicate ``0.''
    (c) Parent or legal guardian information--(1) Year of birth of 
first parent or legal guardian. If applicable, indicate the year of 
birth of the first parent (biological, legal or adoptive) or legal 
guardian of the child. To the extent that a child has both a parent and 
a legal guardian, or two different sets of legal parents, the title IV-
E agency must report on those who had legal responsibility for the 
child. We are not seeking information on putative parent(s) in this 
paragraph. If there is only one parent or legal guardian of the child, 
that person's year of birth must be reported here. If the child was 
abandoned indicate ``abandoned.'' Abandoned means that the child was 
left alone or with others and the identity of the child's parent(s) or 
legal guardian(s) is unknown and cannot be ascertained. This includes a 
child left at a ``safe haven.''
    (2) Year of birth of second parent or legal guardian. If 
applicable, indicate the year of birth of the second parent 
(biological, legal or adoptive) or legal guardian of the child. We are 
not seeking information on putative parent(s) in this paragraph. If the 
child was abandoned, indicate ``abandoned.'' Abandoned means that the 
child was left alone or with others and the identity of the child's 
parent(s) or legal guardian(s) is unknown and cannot be ascertained. 
This includes a child left at a ``safe haven.'' Indicate ``not 
applicable'' if there is not another parent or legal guardian.
    (3) Tribal membership mother. For state title IV-E agencies only, 
indicate whether the biological or adoptive mother is a member of an 
Indian tribe. Indicate ``yes,'' ``no,'' or ``unknown.''
    (4) Tribal membership father. For state title IV-E agencies only, 
indicate whether the biological or adoptive father is a member of an 
Indian tribe. Indicate ``yes,'' ``no,'' or ``unknown.''
    (5) Termination/modification of parental rights. Indicate whether 
the termination/modification of parental rights for each parent 
(biological, legal and/or putative) was voluntary or involuntary. 
Voluntary means the parent voluntary relinquished their parental rights 
to the title IV-E agency, with or without court involvement. Indicate 
``voluntary'' or ``involuntary.'' Indicate ``not applicable'' if there 
was no termination/modification and leave paragraphs (c)(5)(i), 
(c)(5)(ii), (c)(6) and (c)(7) of this section blank.
    (i) Termination/modification of parental rights petition. Indicate 
the month, day and year that each petition to terminate/modify the 
parental rights of a biological, legal and/or putative parent was filed 
in court, if applicable. Indicate ``deceased'' if the parent is 
deceased.
    (ii) Termination/modification of parental rights. Enter the month, 
day and year that the parental rights were voluntarily or involuntarily 
terminated/modified, for each biological, legal and/or putative parent, 
if applicable. If the parent is deceased, enter the date of death.
    (6) Involuntary termination/modification of parental rights under 
ICWA. For state title IV-E agencies only: If the state title IV-E 
agency indicated ``yes'' to paragraph (b)(4) or indicated ``yes, ICWA 
applies'' to paragraph (b)(5), and indicated ``involuntary'' to 
paragraph (c)(5), the state title IV-E agency must complete paragraphs 
(c)(6)(i) through (iii) of this section.
    (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 with ``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.''
    (7) Voluntary termination/modification of parental rights under 
ICWA. For state title IV-E agencies only: If the state title IV-E 
agency indicated ``yes'' to paragraph (b)(4) or indicated ``yes, ICWA 
applies'' to paragraph (b)(5), and indicated ``voluntary'' to paragraph 
(c)(5) of this section, indicate whether the consent to termination of 
parental or Indian custodian rights was executed in writing and 
recorded before a court of competent jurisdiction 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.''
    (d) Removal information--(1) Date of child's removal. Indicate the 
removal date(s) in month, day and year format for each removal of a 
child who enters the placement and care responsibility of the title IV-
E agency. For a child who is removed and is placed initially in foster 
care, indicate the date that the title IV-E agency received placement 
and care responsibility. For a child who ran away or whose whereabouts 
are unknown at the time the child is removed and is placed in the 
placement and care responsibility of the title IV-E agency, indicate 
the date that the title IV-E agency received placement and care 
responsibility. For a child who is removed and is placed initially in a 
non-foster care setting, indicate the date that the child enters foster 
care as the date of removal.
    (2) Removal transaction date. A non-modifiable, computer-generated 
date which accurately indicates the month, day and year each response 
to paragraph (d)(1) of this section was entered into the information 
system.
    (3) Removals under ICWA. For state title IV-E agencies: If the 
state title IV-E agency indicated ``yes'' to paragraph (b)(4) or 
indicated ``yes, ICWA applies'' to paragraph (b)(5), the state title 
IV-E agency must complete paragraphs (d)(3)(i) through (d)(3)(iii) for 
each removal 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

[[Page 90575]]

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 
121(a). Indicate ``yes'' or ``no.''
    (ii) Indicate whether the evidence presented for foster care 
placement as indicated in paragraph (d)(3)(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 (d)(3)(i) 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.''
    (4) Environment at removal. Indicate the type of environment 
(household or facility) the child was living in at the time of each 
removal for each removal reported in paragraph (d)(1) of this section. 
Indicate ``parent household'' if the child was living in a household 
that included one or both of the child's parents, whether biological, 
adoptive or legal. Indicate ``relative household'' if the child was 
living with a relative(s), the relative(s) is not the child's legal 
guardian and neither of the child's parents were living in the 
household. Indicate ``legal guardian household'' if the child was 
living with a legal guardian(s), the guardian(s) is not the child's 
relative and neither of the child's parents were living in the 
household. Indicate ``relative legal guardian household'' if the child 
was living with a relative(s) who is also the child's legal guardian. 
Indicate ``justice facility'' if the child was in a detention center, 
jail or other similar setting where the child was detained. Indicate 
``medical/mental health facility'' if the child was living in a 
facility such as a medical or psychiatric hospital or residential 
treatment center. Indicate ``other'' if the child was living in another 
situation not so described, such as living independently or homeless.
    (5) Authority for placement and care responsibility. Indicate the 
title IV-E agency's authority for placement and care responsibility of 
the child for each removal reported in paragraph (d)(1) of this 
section. ``Court ordered'' means that the court has issued an order 
that is the basis for the title IV-E agency's placement and care 
responsibility. ``Voluntary placement agreement'' means that an 
official voluntary placement agreement has been executed between the 
parent(s), legal guardian(s), or child age 18 or older and the title 
IV-E agency. The placement remains voluntary even if a subsequent court 
order is issued to continue the child in out-of-home care. ``Not yet 
determined'' means that a voluntary placement agreement has not been 
signed or a court order has not been issued. When either a voluntary 
placement agreement is signed or a court order issued, the record must 
be updated from ``not yet determined'' to the appropriate response 
option to reflect the title IV-E agency's authority for placement and 
care responsibility at that time.
    (6) Child and family circumstances at removal. Indicate all child 
and family circumstances that were present at the time of the child's 
removal and/or related to the child being placed into foster care for 
each removal reported in paragraph (d)(1) of this section. Indicate 
whether each circumstance listed in the data elements described in 
paragraphs (d)(6)(i) through (xxxiii) ``applies'' or ``does not apply'' 
for each removal indicated in paragraph (d)(1) of this section.
    (i) Runaway. The child has left, without authorization, the home or 
facility where the child was residing.
    (ii) Whereabouts unknown. The child's whereabouts are unknown and 
the title IV-E agency does not consider the child to have run away.
    (iii) Physical abuse. Alleged or substantiated physical abuse, 
injury or maltreatment of the child by a person responsible for the 
child's welfare.
    (iv) Sexual abuse. Alleged or substantiated sexual abuse or 
exploitation of the child by a person who is responsible for the 
child's welfare.
    (v) Psychological or emotional abuse. Alleged or substantiated 
psychological or emotional abuse, including verbal abuse, of the child 
by a person who is responsible for the child's welfare.
    (vi) Neglect. Alleged or substantiated negligent treatment or 
maltreatment of the child, including failure to provide adequate food, 
clothing, shelter, supervision or care by a person who is responsible 
for the child's welfare.
    (vii) Medical neglect. Alleged or substantiated medical neglect 
caused by a failure to provide for the appropriate health care of the 
child by a person who is responsible for the child's welfare, although 
the person was financially able to do so, or was offered financial or 
other means to do so.
    (viii) Domestic violence. Alleged or substantiated violent act(s), 
including any forceful detention of an individual, that results in, 
threatens to result in, or attempts to cause physical injury or mental 
harm. This is committed by a person against another individual residing 
in the child's home and with whom such person is in an intimate 
relationship; dating relationship; is or was related by marriage; or 
has a child in common. This circumstance includes domestic violence 
between the child and his or her partner and applies to a child or 
youth of any age (including those younger and older than the age of 
majority. This does not include alleged or substantiated maltreatment 
of the child by a person who is responsible for the child's welfare.
    (ix) Abandonment. The child was left alone or with others and the 
parent or legal guardian's identity is unknown and cannot be 
ascertained. This includes a child left at a ``safe haven.'' This 
category does not apply when the identity of the parent(s) or legal 
guardian(s) is known.
    (x) Failure to return. The parent, legal guardian or caretaker did 
not or has not returned for the child or made his or her whereabouts 
known. This category does not apply when the identity of the parent, 
legal guardian or caretaker is unknown.
    (xi) Caretaker's alcohol use. A parent, legal guardian or other 
caretaker responsible for the child uses alcohol compulsively that is 
not of a temporary nature.
    (xii) Caretaker's drug use. A parent, legal guardian or other 
caretaker responsible for the child uses drugs compulsively that is not 
of a temporary nature.
    (xiii) Child alcohol use. The child uses alcohol.
    (xiv) Child drug use. The child uses drugs.
    (xv) Prenatal alcohol exposure. The child has been identified as 
prenatally exposed to alcohol, resulting in fetal alcohol spectrum 
disorders such as fetal alcohol exposure, fetal alcohol effect or fetal 
alcohol syndrome.
    (xvi) Prenatal drug exposure. The child has been identified as 
prenatally exposed to drugs.
    (xvii) Diagnosed condition. The child has a clinical diagnosis by a 
qualified professional of a health, behavioral or mental health 
condition, such as one or more of the following: Intellectual 
disability, emotional disturbance, specific learning disability, 
hearing, speech or sight impairment, physical disability or other 
clinically diagnosed condition.
    (xviii) Inadequate access to mental health services. The child and/
or child's family has inadequate resources to access the necessary 
mental health services outside of the child's out-of-home care 
placement.
    (xix) Inadequate access to medical services. The child and/or 
child's family

[[Page 90576]]

has inadequate resources to access the necessary medical services 
outside of the child's out-of-home care placement.
    (xx) Child behavior problem. The child's behavior in his or her 
school and/or community adversely affects his or her socialization, 
learning, growth and/or moral development. This includes all child 
behavior problems, as well as adjudicated and non-adjudicated status or 
delinquency offenses and convictions.
    (xxi) Death of caretaker. Existing family stress in caring for the 
child or an inability to care for the child due to the death of a 
parent, legal guardian or other caretaker.
    (xxii) Incarceration of caretaker. The child's parent, legal 
guardian or caretaker is temporarily or permanently placed in jail or 
prison which adversely affects his or her ability to care for the 
child.
    (xxiii) Caretaker's significant impairment--physical/emotional. A 
physical or emotional illness or disabling condition of the child's 
parent, legal guardian or caretaker that adversely limits his or her 
ability to care for the child.
    (xxiv) Caretaker's significant impairment--cognitive. The child's 
parent, legal guardian or caretaker has cognitive limitations that 
impact his or her ability to function in areas of daily life, which 
adversely affect his or her ability to care for the child. It also may 
be characterized by a significantly below-average score on a test of 
mental ability or intelligence.
    (xxv) Inadequate housing. The child's or his or her family's 
housing is substandard, overcrowded, unsafe or otherwise inadequate 
which results in it being inappropriate for the child to reside.
    (xxvi) Voluntary relinquishment for adoption. The child's parent 
has voluntarily relinquished the child by assigning the physical and 
legal custody of the child to the title IV-E agency, in writing, for 
the purpose of having the child adopted.
    (xxvii) Child requested placement. The child, age 18 or older, has 
requested placement into foster care.
    (xxviii) Sex trafficking. The child is a victim of sex trafficking 
at the time of removal.
    (xxix) Parental immigration detainment or deportation. The parent 
is or was detained or deported by immigration officials.
    (xxx) Family conflict related to child's sexual orientation, gender 
identity, or gender expression. There is family conflict related to the 
child's sexual orientation, gender identity, or gender expression. This 
includes the child's expressed identity or perceived status as lesbian, 
gay, bisexual, transgender, questioning, queer, or gender non-
conforming. This also includes any conflict related to the ways in 
which a child manifests masculinity or femininity.
    (xxxi) Educational neglect. Alleged or substantiated failure of a 
parent or caregiver to enroll a child of mandatory school age in school 
or provide appropriate home schooling or needed special educational 
training, thus allowing the child or youth to engage in chronic 
truancy.
    (xxxii) Public agency title IV-E agreement. The child is in the 
placement and care responsibility of another public agency that has an 
agreement with the title IV-E agency pursuant to section 472(a)(2)(B) 
of the Act and on whose behalf title IV-E foster care maintenance 
payments are made
    (xxxiii) Tribal title IV-E agreement. The child is in the placement 
and care responsibility of an Indian tribe, tribal organization or 
consortium with which the title IV-E agency has an agreement and on 
whose behalf title IV-E foster care maintenance payments are made.
    (xxxiv) Homelessness. The child or his or her family has no regular 
or adequate place to live. This includes living in a car, or on the 
street, or staying in a homeless or other temporary shelter.
    (7) Victim of sex trafficking prior to entering foster care. 
Indicate whether the child had been a victim of sex trafficking before 
the current out-of-home care episode. Indicate ``yes'' if the child was 
a victim or ``no'' if the child had not been a victim.
    (i) Report to law enforcement. If the title IV-E agency indicated 
``yes'' in paragraph (d)(7), indicate whether the title IV-E agency 
made a report to law enforcement for entry into the National Crime 
Information Center (NCIC) database. Indicate ``yes'' if the agency made 
a report to law enforcement and indicate ``no'' if the agency did not 
make a report.
    (ii) Date. If the title IV-E agency indicated ``yes'' in paragraph 
(d)(7)(i) of this section, indicate the date that the agency made the 
report to law enforcement.
    (8) Victim of sex trafficking while in foster care. Indicate 
``yes'' if the child was a victim of sex trafficking while in out-of-
home care during the current out-of-home care episode. Indicate ``no'' 
if the child was not a victim of sex trafficking during the current 
out-of-home care episode.
    (i) Report to law enforcement. If the title IV-E agency indicated 
``yes'' in this paragraph (d)(8) of this section, indicate whether the 
agency made a report to law enforcement for entry into the NCIC 
database. Indicate ``yes'' if the title IV-E agency made a report(s) to 
law enforcement and indicate ``no'' if the title IV-E agency did not 
make a report.
    (ii) Date. If the title IV-E agency indicated ``yes'' in paragraph 
(d)(8)(i), indicate the date(s) the agency made the report(s) to law 
enforcement.
    (e) Living arrangement and provider information--(1) Date of living 
arrangement. Indicate the month, day and year representing the first 
date of placement in each of the child's living arrangements for each 
out-of-home care episode. In the case of a child who has run away, 
whose whereabouts are unknown, or who is already in a living 
arrangement and remains there when the title IV-E agency receives 
placement and care responsibility, indicate the date of the VPA or 
court order providing the title IV-E agency with placement and care 
responsibility for the child, rather than the date when the child was 
originally placed in the living arrangement.
    (2) Foster family home. Indicate whether each of the child's living 
arrangements is a foster family home, with a ``yes'' or ``no'' as 
appropriate. If the child has run away or the child's whereabouts are 
unknown, indicate ``no.'' If the title IV-E agency indicates that the 
child is living in a foster family home, by indicating ``yes,'' the 
title IV-E agency must complete the data element Foster family home 
type in paragraph (e)(3) of this section. If the title IV-E agency 
indicates ``no,'' the title IV-E agency must complete the data element 
Other living arrangement type in paragraph (e)(4).
    (3) Foster family home type. If the title IV-E agency indicated 
that the child is living in a foster family home in the data element 
described in paragraph (e)(2), indicate whether each foster family home 
type listed in the data elements in paragraphs (e)(3)(i) through 
(e)(3)(vi) of this section applies or does not apply; otherwise the 
title IV-E agency must leave this data element blank.
    (i) Licensed home. The child's living arrangement is licensed or 
approved by the state or tribal licensing/approval authority.
    (ii) Therapeutic foster family home. The home provides specialized 
care and services.
    (iii) Shelter care foster family home. The home is so designated by 
the state or tribal licensing/approval authority, and is designed to 
provide short-term or transitional care.

[[Page 90577]]

    (iv) Relative foster family home. The foster parent(s) is related 
to the child by biological, legal or marital connection and the 
relative foster parent(s) lives in the home as his or her primary 
residence.
    (v) Pre-adoptive home. The home is one in which the family and the 
title IV-E agency have agreed on a plan to adopt the child.
    (vi) Kin foster family home. The home is one in which there is a 
kin relationship as defined by the title IV-E agency, such as one where 
there is a psychological, cultural or emotional relationship between 
the child or the child's family and the foster parent(s) and there is 
not a legal, biological, or marital connection between the child and 
foster parent.
    (4) Other living arrangement type. If the title IV-E agency 
indicated that the child's living arrangement is other than a foster 
family home in the data element Foster family home in paragraph (e)(2) 
of this section, indicate the type of setting; otherwise the title IV-E 
agency must leave this data element blank. Indicate ``group home-family 
operated'' if the child is in a group home that provides 24-hour care 
in a private family home where the family members are the primary 
caregivers. Indicate ``group home-staff operated'' if the child is in a 
group home that provides 24-hour care for children where the care-
giving is provided by shift or rotating staff. Indicate ``group home-
shelter care'' if the child is in a group home that provides 24-hour 
care which is short-term or transitional in nature, and is designated 
by the state or tribal licensing/approval authority to provide shelter 
care. Indicate ``residential treatment center'' if the child is in a 
facility that has the purpose of treating children with mental health 
or behavioral conditions. Indicate ``child care institution'' if the 
child is in a private child care institution, or a public child care 
institution which accommodates no more than 25 children, and is 
licensed by the state or tribal authority responsible for licensing or 
approving child care institutions. This does not include detention 
facilities, forestry camps, training schools or any other facility 
operated primarily for the detention of children who are determined to 
be delinquent. Indicate ``child care institution-shelter care'' if the 
child is in a child care institution as defined above and the 
institution is designated to provide shelter care by the state or 
tribal authority responsible for licensing or approving child care 
institutions and is short-term or transitional in nature. Indicate 
``supervised independent living'' if the child is living independently 
in a supervised setting. Indicate ``juvenile justice facility'' if the 
child is in a secure facility or institution where alleged or 
adjudicated juvenile delinquents are housed. Indicate ``medical or 
rehabilitative facility'' if the child is in a facility where an 
individual receives medical or physical health care, such as a 
hospital. Indicate ``psychiatric hospital'' if the child is in a 
facility that provides emotional or psychological health care and is 
licensed or accredited as a hospital. Indicate ``runaway'' if the child 
has left, without authorization, the home or facility where the child 
was placed. Indicate ``whereabouts unknown'' if the child is not in the 
physical custody of the title IV-E agency or person or institution with 
whom the child has been placed, the child's whereabouts are unknown and 
the title IV-E agency does not consider the child to have run away. 
Indicate ``placed at home'' if the child is home with the parent(s) or 
legal guardian(s) in preparation for the title IV-E agency to return 
the child home permanently.
    (5) Private agency living arrangement. Indicate the type of 
contractual relationship with a private agency for each of the child's 
living arrangements reported in paragraph (e)(1) of this section. 
Indicate ``private agency involvement'' if the child is placed in a 
living arrangement that is either licensed, managed, or run by a 
private agency that is under contract with the title IV-E agency. 
Indicate ``no private agency involvement'' if the child's living 
arrangement is not licensed, managed or run by a private agency.
    (6) Location of living arrangement. Indicate whether each of the 
child's living arrangements reported in paragraph (e)(1) of this 
section is located within or outside of the reporting state or tribal 
service area or is outside of the country. Indicate ``out-of-state or 
out-of-tribal service area'' if the child's living arrangement is 
located outside of the reporting state or tribal service area but 
inside the United States. Indicate ``in-state or in-tribal service 
area'' if the child's living arrangement is located within the 
reporting state or tribal service area. Indicate ``out-of-country'' if 
the child's living arrangement is outside of the United States. 
Indicate ``runaway or whereabouts unknown'' if the child has run away 
from his or her living arrangement or the child's whereabouts are 
unknown. If the title IV-E agency indicates either ``out-of-state or 
out-of-tribal service area'' or ``out-of-country'' for the child's 
living arrangement, the title IV-E agency must complete the data 
element in paragraph (e)(7) of this section; otherwise the title IV-E 
agency must leave paragraph (e)(7) blank.
    (7) Jurisdiction or country where child is living. Indicate the 
state, tribal service area, Indian reservation, or country where the 
reporting title IV-E agency placed the child for each living 
arrangement, if the title IV-E agency indicated either ``out-of-state'' 
or ``out-of-tribal service area'' or ``out-of-country'' in paragraph 
(e)(6) of this section; otherwise the title IV-E agency must leave 
paragraph (e)(7) blank. The title IV-E agency must report the 
information in a format according to ACF's specifications.
    (8) Available ICWA foster care and pre-adoptive placement 
preferences. For state title IV-E agencies only: If the state title IV-
E agency indicated ``yes'' to paragraph (b)(4) or indicated ``yes, ICWA 
applies'' to paragraph (b)(5), indicate which foster care or pre-
adoptive placements that meet the placement preferences of ICWA in 25 
U.S.C. 1915(b) were willing to accept placement for each of the child's 
living arrangements reported in paragraph (e)(1) of this section. 
Indicate in each paragraph (e)(8)(i) through (v) of this section 
``yes'' or ``no.''
    (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.
    (v) A placement that complies with the order of preference for 
foster care or pre-adoptive placements established by an Indian child's 
tribe, in accordance with 25 U.S.C. 1915(c).
    (9) Foster care and pre-adoptive placement preferences under ICWA. 
For state title IV-E agencies only: If the state title IV-E agency 
indicated ``yes'' to paragraph (b)(4) or indicated ``yes, ICWA 
applies'' to paragraph (b)(5), for each of the Indian child's foster 
care or pre-adoptive placement(s) reported in paragraph (e)(1) of this 
section, indicate whether the placement meets the placement preferences 
of ICWA in 25 U.S.C. 1915(b) 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

[[Page 90578]]

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, in accordance with 25 U.S.C. 1915(c)'' 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 (e)(10). Otherwise, the state title 
IV-E agency must leave paragraph (e)(10) blank.
    (10) Good cause under ICWA. For state title IV-E agencies only: If 
the state title IV-E agency indicated ``placement does not meet ICWA 
placement preferences'' in paragraph (e)(9), 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 (e)(11) of this section. If the state 
title IV-E agency indicated ``no,'' then the state title IV-E agency 
must leave paragraph (e)(11) blank.
    (11) Basis for good cause. For state title IV-E agencies only: If 
the state title IV-E agency indicated ``yes'' to paragraph (e)(10), 
indicate the state court's basis for determining good cause to depart 
from ICWA placement preferences by indicating ``yes'' or ``no'' in each 
paragraph (e)(11)(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.
    (12) Marital status of the foster parent(s). Indicate the marital 
status of the child's foster parent(s) for each foster family home 
living arrangement in which the child is placed, as indicated in 
paragraph (e)(3) of this section. Indicate ``married couple'' if the 
foster parents are considered united in matrimony according to 
applicable laws. Include common law marriage, where provided by 
applicable laws. Indicate ``unmarried couple'' if the foster parents 
are living together as a couple, but are not united in matrimony 
according to applicable laws. Indicate ``separated'' if the foster 
parent is legally separated or is living apart from his or her spouse. 
Indicate ``single adult'' if the foster parent is not married and is 
not living with another individual as part of a couple. If the response 
is either ``married couple'' or ``unmarried couple,'' the title IV-E 
agency must complete the data elements for the second foster parent in 
paragraphs (e)(20) through (e)(25) of this section; otherwise the title 
IV-E agency must leave those data elements blank.
    (13) Child's relationships to the foster parent(s). Indicate the 
type of relationship between the child and his or her foster parent(s), 
for each foster family home living arrangement in which the child is 
placed, as indicated in paragraph (e)(3) of this section. Indicate 
``paternal grandparent(s)'' if the foster parent(s) is the child's 
paternal grandparent (by biological, legal or marital connection). 
Indicate ``maternal grandparent(s)'' if the foster parent(s) is the 
child's maternal grandparent (by biological, legal or marital 
connection). Indicate ``other paternal relative(s)'' if the foster 
parent(s) is the child's paternal relative (by biological, legal or 
marital connection) other than a grandparent, such as an aunt, uncle or 
cousin. Indicate ``other maternal relative(s)'' if the foster parent(s) 
is the child's maternal relative (by biological, legal or marital 
connection) other than a grandparent, such as an aunt, uncle or cousin. 
Indicate ``sibling(s)'' if the foster parent(s) is a brother or sister 
of the child, either biologically, legally or by marriage. Indicate 
``non-relative(s)'' if the foster parent(s) is not related to the child 
(by biological, legal or marital connection). Indicate ``kin'' if the 
foster parent(s) has kin relationship to the child as defined by the 
title IV-E agency, such as one where there is a psychological, cultural 
or emotional relationship between the child or the child's family and 
the foster parent(s) and there is not a legal, biological, or marital 
connection between the child and foster parent.
    (14) Year of birth for first foster parent. Indicate the year of 
birth for the first foster parent for each foster family home living 
arrangement in which the child is placed, as indicated in paragraph 
(e)(3) of this section.
    (15) First foster parent tribal membership. Indicate whether the 
first foster parent is a member of an Indian tribe. Indicate ``yes,'' 
``no,'' or ``unknown.''
    (16) Race of first foster parent. Indicate the race of the first 
foster parent for each foster family home living arrangement in which 
the child is placed, as indicated in paragraph (e)(3) of this section. 
In general, an individual's race is determined by the individual. 
Indicate whether each race category listed in the data elements 
described in paragraphs (e)(16)(i) through (vii) of this section 
applies with a ``yes'' or ``no.''
    (i) Race--American Indian or Alaska Native. An American Indian or 
Alaska Native individual has origins in any of the original peoples of 
North or South America (including Central America) and maintains tribal 
affiliation or community attachment.
    (ii) Race--Asian. An Asian individual has origins in any of the 
original peoples of the Far East, Southeast Asia or the Indian 
subcontinent including, for example, Cambodia, China, India, Japan, 
Korea, Malaysia, Pakistan, the Philippine Islands, Thailand and 
Vietnam.
    (iii) Race--Black or African American. A Black or African American 
individual has origins in any of the black racial groups of Africa.
    (iv) Race--Native Hawaiian or Other Pacific Islander. A Native 
Hawaiian or Other Pacific Islander individual has origins in any of the 
original peoples of Hawaii, Guam, Samoa or other Pacific Islands.
    (v) Race--White. A White individual has origins in any of the 
original peoples of Europe, the Middle East or North Africa.
    (vi) Race--unknown. The foster parent does not know his or her 
race, or at least one race.
    (vii) Race--declined. The first foster parent has declined to 
identify a race.
    (17) Hispanic or Latino ethnicity of first foster parent. Indicate 
the Hispanic or Latino ethnicity of the first foster parent for each 
foster family home living arrangement in which the child is placed, as 
indicated in paragraph (e)(3) of this section. In general, an 
individual's ethnicity is determined by the individual. An individual 
is of Hispanic or Latino ethnicity if the individual is a person of 
Cuban, Mexican, Puerto Rican, South or Central American or other 
Spanish culture or origin, regardless of race. Indicate whether this 
category applies with a ``yes'' or ``no.'' If the first foster parent 
does not know his or her ethnicity indicate ``unknown.'' If the 
individual

[[Page 90579]]

refuses to identify his or her ethnicity, indicate ``declined.''
    (18) Gender of first foster parent. Indicate whether the first 
foster parent self identifies as ``female'' or ``male.''
    (19) First foster parent sexual orientation. Indicate whether the 
first foster parent self identifies as ``straight or heterosexual,'' 
``gay or lesbian,'' ``bisexual,'' ``don't know,'' ``something else,'' 
or ``declined'' if the first foster parent declined to identify his/her 
status.
    (20) Year of birth for second foster parent. Indicate the birth 
year of the second foster parent for each foster family home living 
arrangement in which the child is placed, as indicated in paragraph 
(e)(3) of this section, if applicable. The title IV-E agency must leave 
this data element blank if there is no second foster parent according 
to paragraph (e)(12) of this section.
    (21) Second foster parent tribal membership. Indicate whether the 
second foster parent is a member of an Indian tribe. Indicate ``yes,'' 
``no,'' or ``unknown.''
    (22) Race of second foster parent. Indicate the race of the second 
foster parent for each foster family home living arrangement in which 
the child is placed, as indicated in paragraph (e)(3) of this section, 
if applicable. In general, an individual's race is determined by the 
individual. Indicate whether each race category listed in the data 
elements described in paragraphs (e)(22)(i) through (vii) of this 
section applies with a ``yes'' or ``no.'' The title IV-E agency must 
leave this data element blank if there is no second foster parent 
according to paragraph (e)(12) of this section.
    (i) Race--American Indian or Alaska Native. An American Indian or 
Alaska Native individual has origins in any of the original peoples of 
North or South America (including Central America) and maintains tribal 
affiliation or community attachment.
    (ii) Race--Asian. An Asian individual has origins in any of the 
original peoples of the Far East, Southeast Asia or the Indian 
subcontinent including, for example, Cambodia, China, India, Japan, 
Korea, Malaysia, Pakistan, the Philippine Islands, Thailand and 
Vietnam.
    (iii) Race--Black or African American. A Black or African American 
individual has origins in any of the black racial groups of Africa.
    (iv) Race--Native Hawaiian or Other Pacific Islander. A Native 
Hawaiian or Other Pacific Islander individual has origins in any of the 
original peoples of Hawaii, Guam, Samoa or other Pacific Islands.
    (v) Race--White. A White individual has origins in any of the 
original peoples of Europe, the Middle East or North Africa.
    (vi) Race--unknown. The second foster parent does not know his or 
her race, or at least one race.
    (vii) Race--declined. The second foster parent has declined to 
identify a race.
    (23) Hispanic or Latino ethnicity of second foster parent. Indicate 
the Hispanic or Latino ethnicity of the second foster parent for each 
foster family home living arrangement in which the child is placed, as 
indicated in paragraph (e)(3) of this section, if applicable. In 
general, an individual's ethnicity is determined by the individual. An 
individual is of Hispanic or Latino ethnicity if the individual is a 
person of Cuban, Mexican, Puerto Rican, South or Central American or 
other Spanish culture or origin, regardless of race. Indicate whether 
this category applies with a ``yes'' or ``no.'' If the second foster 
parent does not know his or her ethnicity, indicate ``unknown.'' If the 
individual refuses to identify his or her ethnicity, indicate 
``declined.'' The title IV-E agency must leave this data element blank 
if there is no second foster parent according to paragraph (e)(12) of 
this section.
    (24) Gender of second foster parent. Indicate whether the second 
foster parent self identifies as ``female'' or ``male.''
    (25) Second foster parent sexual orientation. Indicate whether the 
second foster parent self identifies as ``straight or heterosexual,'' 
``gay or lesbian,'' ``bisexual,'' ``don't know,'' ``something else,'' 
or ``declined'' if the second foster parent declined to identify his/
her status.
    (f) Permanency planning--(1) Permanency plan. Indicate each 
permanency plan established for the child. Indicate ``reunify with 
parent(s) or legal guardian(s)'' if the plan is to keep the child in 
out-of-home care for a limited time and the title IV-E agency is to 
work with the child's parent(s) or legal guardian(s) to establish a 
stable family environment. Indicate ``live with other relatives'' if 
the plan is for the child to live permanently with a relative(s) (by 
biological, legal or marital connection) who is not the child's 
parent(s) or legal guardian(s). Indicate ``adoption'' if the plan is to 
facilitate the child's adoption by relatives, foster parents, kin or 
other unrelated individuals. Indicate ``guardianship'' if the plan is 
to establish a new legal guardianship. Indicate ``planned permanent 
living arrangement'' if the plan is for the child to remain in foster 
care until the title IV-E agency's placement and care responsibility 
ends. The title IV-E agency must only select ``planned permanent living 
arrangement'' consistent with the requirements in section 475(5)(C)(i) 
of the Act. Indicate ``permanency plan not established'' if a 
permanency plan has not yet been established.
    (2) Date of permanency plan. Indicate the month, day and year that 
each permanency plan(s) was established during each out-of-home care 
episode.
    (3) Date of periodic review. Enter the month, day and year of each 
periodic review, either by a court or by administrative review (as 
defined in section 475(6) of the Act) that meets the requirements of 
section 475(5)(B) of the Act.
    (4) Date of permanency hearing. Enter the month, day and year of 
each permanency hearing held by a court or an administrative body 
appointed or approved by the court that meets the requirements of 
section 475(5)(C) of the Act.
    (5) Juvenile justice. Indicate whether the child was found to be a 
status offender or adjudicated delinquent by a juvenile judge or court 
at any time during the report period. A status offense is specific to 
juveniles, such as running away, truancy or underage alcohol 
violations. Indicate ``yes'' or ``no.''
    (6) Caseworker visit dates. Enter each date in which a caseworker 
had an in-person, face-to-face visit with the child consistent with 
section 422(b)(17) of the Act. Indicate the month, day and year of each 
visit.
    (7) Caseworker visit location. Indicate the location of each in-
person, face-to-face visit between the caseworker and the child. 
Indicate ``child's residence'' if the visit occurred at the location 
where the child is currently residing, such as the current foster care 
provider's home, child care institution or facility. Indicate ``other 
location'' if the visit occurred at any location other than where the 
child currently resides, such as the child's school, a court, a child 
welfare office or in the larger community.
    (8) Transition plan. Indicate whether a child has a transition plan 
that meets the requirements of section 475(5)(H) of the Act, including 
plans developed before the 90-day period. Indicate ``yes,'' ``no'' or 
``not applicable.''
    (9) Date of transition plan. Indicate the month, day and year of 
the child's transition plan, if the title IV-E agency indicated in 
paragraph (f)(8) of this section that the child has a transition plan 
that meets the requirements of section 475(5)(H) of the Act; otherwise 
leave this paragraph blank.

[[Page 90580]]

    (10) Active efforts. For state title IV-E agencies only: If the 
state title IV-E agency indicated ``yes'' to paragraph (b)(4) or 
indicated ``yes, ICWA applies'' to paragraph (b)(5), indicate whether 
the active efforts in each paragraph (f)(10)(i) through (xiii) 
``applies'' or ``does not apply.'' The state title IV-E agency must 
indicate all of the active efforts that apply once the child enters the 
AFCARS out-of-home care reporting population per Sec.  1355.42(a) 
through the child's exit per paragraph (g)(1) of this section and the 
active efforts made prior to the child entering the out-of-home care 
reporting population.
    (i) Assist the parent(s) or Indian custodian through the steps of a 
case plan and with developing the resources necessary to satisfy the 
case plan.
    (ii) Conduct a comprehensive assessment of the circumstances of the 
Indian child's family, with a focus on safe reunification as the most 
desirable goal.
    (iii) Identify appropriate services to help the parent overcome 
barriers, including actively assisting the parents in obtaining such 
services.
    (iv) Identify, notify and invite representatives of the Indian 
child's tribe to participate in providing support and services to the 
Indian child's family and in family team meetings, permanency planning 
and resolution of placement issues.
    (v) Conduct or cause to be conducted a diligent search for the 
Indian child's extended family members, and contact and consult with 
extended family members to provide family structure and support for the 
Indian child and the Indian child's parents.
    (vi) Offer and employ all available and culturally appropriate 
family preservation strategies and facilitate the use of remedial and 
rehabilitative services provide by the child's tribe.
    (vii) Take steps to keep siblings together whenever possible.
    (viii) Support regular visits with parents or Indian custodians in 
the most natural setting possible as well as trial home visits of the 
Indian child during any period of removal, consistent with the need to 
ensure the health, safety, and welfare of the child.
    (ix) Identify community resources including housing, financial, 
transportation, mental health, substance use and peer support services 
and actively assisting the Indian child's parents or when appropriate, 
the child's family, in utilizing and accessing those resources.
    (x) Monitor progress and participation in services.
    (xi) Consider alternative ways to address the needs of the Indian 
child's parents and, where appropriate, the family, if the optimum 
services do not exist or are not available.
    (xii) Provide post-reunification services and monitoring.
    (xiii) Other active efforts tailored to the facts and circumstances 
of the case.
    (g) General exit information. Provide exit information for each 
out-of-home care episode. An exit occurs when the title IV-E agency's 
placement and care responsibility of the child ends.
    (1) Date of exit. Indicate the month, day and year for each of the 
child's exits from out-of-home care. An exit occurs when the title IV-E 
agency's placement and care responsibility of the child ends. If the 
child has not exited out-of-home care the title IV-E agency must leave 
this data element blank. If this data element is applicable, the data 
elements in paragraphs (g)(2) and (3) of this section must have a 
response.
    (2) Exit transaction date. A non-modifiable, computer-generated 
date which accurately indicates the month, day and year each response 
to paragraph (g)(1) of this section was entered into the information 
system.
    (3) Exit reason. Indicate the reason for each of the child's exits 
from out-of-home care. Indicate ``not applicable'' if the child has not 
exited out-of-home care. Indicate ``reunify with parent(s)/legal 
guardian(s)'' if the child was returned to his or her parent(s) or 
legal guardian(s) and the title IV-E agency no longer has placement and 
care responsibility. Indicate ``live with other relatives'' if the 
child exited to live with a relative (related by a biological, legal or 
marital connection) other than his or her parent(s) or legal 
guardian(s). Indicate ``adoption'' if the child was legally adopted. 
Indicate ``emancipation'' if the child exited care due to age. Indicate 
``guardianship'' if the child exited due to a legal guardianship of the 
child. Indicate ``runaway or whereabouts unknown'' if the child ran 
away or the child's whereabouts were unknown at the time that the title 
IV-E agency's placement and care responsibility ends. Indicate ``death 
of child'' if the child died while in out-of-home care. Indicate 
``transfer to another agency'' if placement and care responsibility for 
the child was transferred to another agency, either within or outside 
of the reporting state or tribal service area.
    (4) Transfer to another agency. If the title IV-E agency indicated 
the child was transferred to another agency in the data element Exit 
reason described in paragraph (g)(3) of this section, indicate the type 
of agency that received placement and care responsibility for the child 
from the following options: ``State title IV-E agency,'' ``Tribal title 
IV-E agency,'' ``Indian tribe or tribal agency (non-IV-E),'' ``juvenile 
justice agency,'' ``mental health agency,'' ``other public agency'' or 
``private agency.''
    (h) Exit to adoption and guardianship information. Report 
information in paragraph (h) only if the title IV-E agency indicated 
the child exited to adoption or legal guardianship in the data element 
Exit reason described in paragraph (g)(3) of this section. Otherwise 
the title IV-E agency must leave the data elements in paragraph (h) 
blank.
    (1) Marital status of the adoptive parent(s) or guardian(s). 
Indicate the marital status of the adoptive parent(s) or legal 
guardian(s). Indicate ``married couple'' if the adoptive parents or 
legal guardians are considered united in matrimony according to 
applicable laws. Include common law marriage, where provided by 
applicable laws. Indicate ``married but individually adopting or 
obtaining legal guardianship'' if the adoptive parents or legal 
guardians are considered united in matrimony according to applicable 
laws, but are individually adopting or obtaining legal guardianship. 
Indicate ``separated'' if the foster parent is legally separated or is 
living apart from his or her spouse. Indicate ``unmarried couple'' if 
the adoptive parents or guardians are living together as a couple, but 
are not united in matrimony according to applicable laws. Use this 
response option even if only one person of the unmarried couple is the 
adoptive parent or legal guardian of the child. Indicate ``single 
adult'' if the adoptive parent or legal guardian is not married and is 
not living with another individual as part of a couple. If the response 
is ``married couple'' or ``unmarried couple,'' the title IV-E agency 
also must complete the data elements for the second adoptive parent or 
second legal guardian in paragraphs (h)(9) through (14) of this 
section; otherwise the title IV-E agency must leave these data elements 
blank.
    (2) Child's relationship to the adoptive parent(s) or guardian(s). 
Indicate the type of relationship, kinship or otherwise, between the 
child and his or her adoptive parent(s) or legal guardian(s). Indicate 
whether each relationship listed in the data elements described in 
paragraphs (h)(2)(i) through (viii) of this section ``applies'' or 
``does not apply.''
    (i) Paternal grandparent(s). The adoptive parent(s) or legal 
guardian(s) is the child's paternal grandparent(s), by biological, 
legal or marital connection.
    (ii) Maternal grandparent(s). The adoptive parent(s) or legal 
guardian(s) is

[[Page 90581]]

the child's maternal grandparent(s), by biological, legal or marital 
connection.
    (iii) Other paternal relative(s). The adoptive parent(s) or legal 
guardian(s) is the child's paternal relative (by biological, legal or 
marital connection) other than a grandparent, such as an aunt, uncle or 
cousin.
    (iv) Other maternal relative(s). The adoptive parent(s) or legal 
guardian(s) is the child's maternal relative (by biological, legal or 
marital connection) other than a grandparent, such as an aunt, uncle or 
cousin.
    (v) Sibling(s). The adoptive parent or legal guardian is a brother 
or sister of the child, either biologically, legally or by marriage.
    (vi) Kin. The adoptive parent(s) or legal guardian(s) has a kin 
relationship with the child, as defined by the title IV-E agency, such 
as one where there is a psychological, cultural or emotional 
relationship between the child or the child's family and the adoptive 
parent(s) or legal guardian(s) and there is not a legal, biological, or 
marital connection between the child and foster parent.
    (vii) Non-relative(s). The adoptive parent(s) or legal guardian(s) 
is not related to the child by biological, legal or marital connection.
    (viii) Foster parent(s). The adoptive parent(s) or legal 
guardian(s) was the child's foster parent(s).
    (3) Date of birth of first adoptive parent or guardian. Indicate 
the month, day and year of the birth of the first adoptive parent or 
legal guardian.
    (4) First adoptive parent or guardian tribal membership. Indicate 
whether the first adoptive parent or guardian is a member of an Indian 
tribe. Indicate ``yes,'' ``no'' or ``unknown.''
    (5) Race of first adoptive parent or guardian. In general, an 
individual's race is determined by the individual. Indicate whether 
each race category listed in the data elements described in paragraphs 
(h)(5)(i) through (vii) of this section applies with a ``yes'' or 
``no.''
    (i) Race--American Indian or Alaska Native. An American Indian or 
Alaska Native individual has origins in any of the original peoples of 
North or South America (including Central America), and maintains 
tribal affiliation or community attachment.
    (ii) Race--Asian. An Asian individual has origins in any of the 
original peoples of the Far East, Southeast Asia or the Indian 
subcontinent including, for example, Cambodia, China, India, Japan, 
Korea, Malaysia, Pakistan, the Philippine Islands, Thailand and 
Vietnam.
    (iii) Race--Black or African American. A Black or African American 
individual has origins in any of the black racial groups of Africa.
    (iv) Race--Native Hawaiian or Other Pacific Islander. A Native 
Hawaiian or Other Pacific Islander individual has origins in any of the 
original peoples of Hawaii, Guam, Samoa or other Pacific Islands.
    (v) Race--White. A White individual has origins in any of the 
original peoples of Europe, the Middle East or North Africa.
    (vi) Race--Unknown. The first adoptive parent or legal guardian 
does not know his or her race, or at least one race.
    (vii) Race--Declined. The first adoptive parent, or legal guardian 
has declined to identify a race.
    (6) Hispanic or Latino ethnicity of first adoptive parent or 
guardian. In general, an individual's ethnicity is determined by the 
individual. An individual is of Hispanic or Latino ethnicity if the 
individual is a person of Cuban, Mexican, Puerto Rican, South or 
Central American or other Spanish culture or origin, regardless of 
race. Indicate whether this category applies with a ``yes'' or ``no.'' 
If the first adoptive parent or legal guardian does not know his or her 
ethnicity, indicate ``unknown.'' If the individual refuses to identify 
his or her ethnicity, indicate ``declined.''
    (7) Gender of first adoptive parent or guardian. Indicate whether 
the first adoptive parent self identifies as ``female'' or ``male.''
    (8) First adoptive parent or legal guardian sexual orientation. 
Indicate whether the first adoptive parent or legal guardian self 
identifies as ``straight or heterosexual,'' ``gay or lesbian,'' 
``bisexual,'' ``don't know,'' ``something else,'' or ``declined'' if 
the first adoptive parent or legal guardian declined to identify his/
her status.
    (9) Date of birth of second adoptive parent, guardian, or other 
member of the couple. Indicate the month, day and year of the date of 
birth of the second adoptive parent, legal guardian, or other member of 
the couple. The title IV-E agency must leave this data element blank if 
there is no second adoptive parent, legal guardian, or other member of 
the couple according to paragraph (h)(1) of this section.
    (10) Second adoptive parent, guardian, or other member of the 
couple tribal membership. Indicate whether the second adoptive parent 
or guardian is a member of an Indian tribe. Indicate ``yes,'' ``no'' or 
``unknown.''
    (11) Race of second adoptive parent, guardian, or other member of 
the couple. In general, an individual's race is determined by the 
individual. Indicate whether each race category listed in the data 
elements described in paragraphs (h)(11)(i) through (vii) of this 
section applies with a ``yes'' or ``no.'' The title IV-E agency must 
leave this data element blank if there is no second adoptive parent, 
legal guardian, or other member of the couple according to paragraph 
(h)(1) of this section.
    (i) Race--American Indian or Alaska Native. An American Indian or 
Alaska Native individual has origins in any of the original peoples of 
North or South America (including Central America), and maintains 
tribal affiliation or community attachment.
    (ii) Race--Asian. An Asian individual has origins in any of the 
original peoples of the Far East, Southeast Asia or the Indian 
subcontinent including, for example, Cambodia, China, India, Japan, 
Korea, Malaysia, Pakistan, the Philippine Islands, Thailand and 
Vietnam.
    (iii) Race--Black or African American. A Black or African American 
individual has origins in any of the black racial groups of Africa.
    (iv) Race--Native Hawaiian or Other Pacific Islander. A Native 
Hawaiian or Other Pacific Islander individual has origins in any of the 
original peoples of Hawaii, Guam, Samoa or other Pacific Islands.
    (v) Race--White. A White individual has origins in any of the 
original peoples of Europe, the Middle East or North Africa.
    (vi) Race--Unknown. The second adoptive parent, legal guardian, or 
other member of the couple does not know his or her race, or at least 
one race.
    (vii) Race--Declined. The second adoptive parent, legal guardian, 
or other member of the couple has declined to identify a race.
    (12) Hispanic or Latino ethnicity of second adoptive parent, 
guardian, or other member of the couple. In general, an individual's 
ethnicity is determined by the individual. An individual is of Hispanic 
or Latino ethnicity if the individual is a person of Cuban, Mexican, 
Puerto Rican, South or Central American or other Spanish culture or 
origin, regardless of race. Indicate whether this category applies with 
a ``yes'' or ``no.'' If the second adoptive parent, legal guardian, or 
other member of the couple does not know his or her ethnicity, indicate 
``unknown.'' If the individual refuses to identify his or her 
ethnicity, indicate ``declined.'' The title IV-E agency must leave this 
data element blank if there is no second adoptive parent, legal 
guardian, or other member of the couple according to paragraph (h)(1) 
of this section.

[[Page 90582]]

    (13) Gender of second adoptive parent, guardian, or other member of 
the couple. Indicate whether the second adoptive parent, guardian, or 
other member of the couple self identifies as ``female'' or ``male.''
    (14) Second adoptive parent, guardian, or other member of the 
couple sexual orientation. Indicate whether the second adoptive parent 
or legal guardian self identifies as ``straight or heterosexual, '' 
``gay or lesbian,'' ``bisexual,'' ``don't know,'' ``something else,'' 
or ``declined'' if the second adoptive parent or legal guardian 
declined to identify his/her status.
    (15) Inter/Intrajurisdictional adoption or guardianship. Indicate 
whether the child was placed within the state or tribal service area, 
outside of the state or tribal service area or into another country for 
adoption or legal guardianship. Indicate ``interjurisdictional adoption 
or guardianship'' if the reporting title IV-E agency placed the child 
for adoption or legal guardianship outside of the state or tribal 
service area but within the United States. Indicate ``intercountry 
adoption or guardianship'' if the reporting title IV-E agency placed 
the child for adoption or legal guardianship outside of the United 
States. Indicate ``intrajurisdictional adoption or guardianship'' if 
the reporting title IV-E agency placed the child within the same state 
or tribal service area as the one with placing responsibility. If the 
title IV-E agency indicates either ``interjurisdictional adoption or 
guardianship'' or ``intercountry adoption or guardianship'' apply for 
the child's adoption or legal guardianship, the title IV-E agency must 
complete the data element in paragraph (h)(16) of this section; 
otherwise the title IV-E agency must leave it blank.
    (16) Interjurisdictional adoption or guardianship jurisdiction. 
Indicate the state, tribal service area, Indian reservation or country 
where the reporting title IV-E agency placed the child for adoption or 
legal guardianship, in a format according to ACF's specifications. The 
title IV-E agency must complete this data element only if the title IV-
E agency indicated either ``interjurisdictional adoption or 
guardianship'' or ``intercountry adoption or guardianship'' in 
paragraph (h)(15) of this section; otherwise the title IV-E agency must 
leave it blank.
    (17) Adoption or guardianship placing agency. Indicate the agency 
that placed the child for adoption or legal guardianship. Indicate 
``title IV-E agency'' if the reporting title IV-E agency placed the 
child for adoption or legal guardianship. Indicate ``private agency 
under agreement'' if a private agency placed the child for adoption or 
legal guardianship through an agreement with the reporting title IV-E 
agency. Indicate ``Indian tribe under contract/agreement'' if an Indian 
tribe, tribal organization or consortia placed the child for adoption 
or legal guardianship through a contract or an agreement with the 
reporting title IV-E agency.
    (18) Assistance agreement type. Indicate the type of assistance 
agreement between the title IV-E agency and the adoptive parent(s) or 
legal guardian(s): ``Title IV-E adoption assistance agreement;'' 
``State/tribal adoption assistance agreement;'' ``Adoption-Title IV-E 
agreement non-recurring expenses only;'' ``Adoption-Title IV-E 
agreement Medicaid only;'' ``Title IV-E guardianship assistance 
agreement;'' ``State/tribal guardianship assistance agreement;'' or 
``no agreement'' if there is no assistance agreement.
    (19) Siblings in adoptive or guardianship home. Indicate the number 
of siblings of the child who are in the same adoptive or guardianship 
home as the child. A sibling to the child is his or her brother or 
sister by biological, legal, or marital connection. Do not include the 
child who is subject of this record in the total number. If the child 
does not have any siblings, the title IV-E agency must indicate ``not 
applicable.'' If the child has siblings, but they are not in the same 
adoptive or guardianship home as the child, the title IV-E agency must 
indicate ``0.''
    (20) Available ICWA Adoptive placements. For state title IV-E 
agencies only: If the state title IV-E agency indicated ``yes'' to 
paragraph (b)(4) or indicated ``yes, ICWA applies'' to paragraph 
(b)(5), indicate which adoptive placements that meet the placement 
preferences in ICWA at 25 U.S.C. 1915(a) were willing to accept 
placement. Indicate in each paragraph (h)(20)(i) through (h)(20)(iv) of 
this section ``yes'' or ``no.''
    (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 for 
foster care or pre-adoptive placements established by an Indian child's 
tribe, in accordance with 25 U.S.C. 1915(c).
    (21) Adoption placement preferences under ICWA. For state title IV-
E agencies only: If the state title IV-E agency indicated ``yes'' to 
paragraph (b)(4) or indicated ``yes, ICWA applies'' to paragraph (b)(5) 
of this section, indicate whether the adoptive placement meets the 
adoptive placement preferences of ICWA in 25 U.S.C. 1915(a) 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, in accordance with 25 U.S.C. 1915(c),'' 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 
(h)(22). Otherwise, leave blank.
    (22) Good cause under ICWA. For state title IV-E agencies only: If 
the state title IV-E agency indicated ``placement does not meet ICWA 
placement preferences'' in paragraph (h)(21), 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 
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). 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 (h)(23) of this section. If the state title IV-E agency 
indicated ``no,'' then the state title IV-E agency must leave paragraph 
(h)(23) blank.
    (23) Basis for good cause. For state title IV-E agencies only: If 
the state title IV-E agency indicated ``yes'' in paragraph (h)(22), 
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 (h)(23)(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 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.

[[Page 90583]]

Sec.  1355.45  Adoption and guardianship assistance data file elements.

    A title IV-E agency must report the following information for each 
child in the adoption and guardianship assistance reporting population, 
if applicable based on Sec.  1355.42(b).
    (a) General information--(1) Title IV-E agency. Indicate the title 
IV-E agency responsible for submitting the AFCARS data to ACF per 
requirements issued by ACF.
    (2) Report date. The report date corresponds to the end of the 
current report period. Indicate the last month and the year of the 
report period.
    (3) Child record number. The child record number is the encrypted, 
unique person identification number. The record number must be 
encrypted in accordance with ACF standards. Indicate the record number 
for the child.
    (b) Child demographics--(1) Child's date of birth. Indicate the 
month, day and year of the child's birth.
    (2) Child's gender. Indicate whether the child is ``male'' or 
``female,'' as appropriate.
    (3) Child's race. In general, a child's race is determined by the 
child or the child's parent(s) or legal guardian(s). Indicate whether 
each race category listed in the data elements described in paragraphs 
(b)(2)(i) through (viii) of this section applies with a ``yes'' or 
``no.''
    (i) Race--American Indian or Alaska Native. An American Indian or 
Alaska Native child has origins in any of the original peoples of North 
or South America (including Central America), and maintains Tribal 
affiliation or community attachment.
    (ii) Race--Asian. An Asian child has origins in any of the original 
peoples of the Far East, Southeast Asia or the Indian subcontinent 
including, for example, Cambodia, China, India, Japan, Korea, Malaysia, 
Pakistan, the Philippine Islands, Thailand and Vietnam.
    (iii) Race--Black or African American. A Black or African American 
child has origins in any of the black racial groups of Africa.
    (iv) Race--Native Hawaiian or Other Pacific Islander. A Native 
Hawaiian or Other Pacific Islander child has origins in any of the 
original peoples of Hawaii, Guam, Samoa or other Pacific Islands.
    (v) Race--White. A White child has origins in any of the original 
peoples of Europe, the Middle East or North Africa.
    (vi) Race--Unknown. The child or parent or legal guardian does not 
know the race, or at least one race of the child.
    (vii) Race--Abandoned. The child's race is unknown because the 
child has been abandoned. Abandoned means that the child was left alone 
or with others and the parent(s) or legal guardian(s)' identity is 
unknown and cannot be ascertained. This includes a child left at a 
``safe haven.''
    (viii) Race--Declined. The child or parent or legal guardian has 
declined to identify a race.
    (4) Hispanic or Latino ethnicity. In general, a child's ethnicity 
is determined by the child or the child's parent(s) or legal 
guardian(s). A child is of Hispanic or Latino ethnicity if the child is 
a person of Cuban, Mexican, Puerto Rican, South or Central American or 
other Spanish culture or origin, regardless of race. Indicate whether 
this category applies with a ``yes'' or ``no.'' If the child or the 
child's parent or legal guardian does not know or cannot communicate 
whether the child is of Hispanic or Latino ethnicity, indicate 
``unknown.'' If the child was abandoned indicate ``abandoned.'' 
Abandoned means that the child was left alone or with others and the 
parent(s) or legal guardian(s)' identity is unknown and cannot be 
ascertained. This includes a child left at a ``safe haven.'' If the 
child or the child's parent(s) or legal guardian(s) refuses to identify 
the child's ethnicity, indicate ``declined.''
    (c) Adoption and guardianship assistance agreement information--(1) 
Assistance agreement type. Indicate whether the child is or was in a 
finalized adoption with a title IV-E adoption assistance agreement or 
in a legal guardianship with a title IV-E guardianship assistance 
agreement, pursuant to sections 473(a) and 473(d) of the Act, in effect 
during the report period. Indicate ``title IV-E adoption assistance 
agreement'' or ``title IV-E guardianship assistance agreement,'' as 
appropriate.
    (2) Adoption or guardianship subsidy amount. Indicate the per diem 
dollar amount of the financial subsidy paid to the adoptive parent(s) 
or legal guardian(s) on behalf of the child during the last month of 
the current report period, if any. The title IV-E agency must indicate 
``0'' if a financial subsidy was not paid during the last month of the 
report period.
    (d) Adoption finalization or guardianship legalization date. 
Indicate the month, day and year that the child's adoption was 
finalized or the guardianship became legalized.
    (e) Agreement termination date. If the title IV-E agency terminated 
the adoption assistance or guardianship assistance agreement or the 
agreement expired during the report period, indicate the month, day and 
year that the agreement terminated or expired; otherwise leave this 
data element blank.


Sec.  1355.46  Compliance.

    (a) Files subject to compliance. ACF will evaluate the out-of-home 
care and adoption and guardianship assistance data files that a title 
IV-E agency submits to determine whether the data complies with the 
requirements of Sec.  1355.43 and the data file submission and data 
quality standards described in paragraphs (c) and (d) of this section. 
ACF will exempt records related to a child in either data file whose 
18th birthday occurred in a prior report period and will exempt records 
relating to a child in the adoption and guardianship assistance data 
file who is in a title IV-E guardianship from a compliance 
determination as described in paragraph (e) of this section.
    (b) Errors. ACF will utilize the error definitions in paragraphs 
(b)(1) through (5) of this section to assess a title IV-E agency's out-
of-home care and adoption and guardianship assistance data files. This 
assessment of errors will help ACF to determine if the title IV-E 
agency's submitted data files meet the data file submission and data 
quality standards outlined in paragraphs (c) and (d) of this section. 
ACF will develop and issue error specifications.
    (1) Missing data. Missing data refers to instances in which a data 
element has a blank or otherwise missing response, when such a response 
is not a valid option as described in Sec. Sec.  1355.44 or 1355.45.
    (2) Invalid data. Invalid data refers to instances in which a data 
element contains a value that is outside the parameters of acceptable 
responses or exceeds, either positively or negatively, the acceptable 
range of response options as described in Sec. Sec.  1355.44 or 
1355.45.
    (3) Internally inconsistent data. Internally inconsistent data 
refers to instances in which a data element fails an internal 
consistency check designed to validate the logical relationship between 
data elements within each record. This assessment will identify all 
data elements involved in a particular check as in error.
    (4) Cross-file errors. A cross-file error occurs when a cross-file 
check determines that a response option for a data element recurs 
across the records in either the out-of-home care data file or adoption 
and guardianship assistance data file beyond a specified acceptable 
threshold as specified per ACF.
    (5) Tardy transactions. Tardy transactions are instances in which 
the removal transaction date or exit transaction date described in 
Sec.  1355.44(d)(2) and (g)(2) respectively,

[[Page 90584]]

are entered into the title IV-E agency's information system more than 
30 days after the event.
    (c) Data file standards. To be in compliance with the AFCARS 
requirements, the title IV-E agency must submit a data file in 
accordance with the data file standards described in paragraphs (c)(1) 
through (3) of this section.
    (1) Timely submission. ACF must receive the data files on or before 
the reporting deadline described in Sec.  1355.43(a).
    (2) Proper format. The data files must meet the technical standards 
issued by ACF for data file construction and transmission. In addition, 
each record subject to compliance standards within the data file must 
have the data elements described in Sec. Sec.  1355.44(a)(1) through 
(4), 1355.44(b)(1) and (b)(2)(i), 1355.45(a), and 1355.45(b)(1) and (2) 
be 100 percent free of missing data, invalid data and internally 
inconsistent data (see paragraphs (b)(1) through (3) of this section). 
ACF will not process a title IV-E agency's data file that does not meet 
the proper format standard.
    (d) Data quality standards. (1) To be in compliance with the AFCARS 
requirements, the title IV-E agency must submit a data file that has no 
more than 10 percent total of missing, invalid, or internally 
inconsistent data, or tardy transactions for each data element of 
applicable records. These standards are in addition to the formatting 
standards described in paragraph (c)(2) of this section.
    (2) Acceptable cross-file. The data files must be free of cross-
file errors that exceed the acceptable thresholds, as defined by ACF.
    (e) Compliance determination and corrected data. (1) ACF will first 
determine whether the title IV-E agency's out-of-home care data file 
and adoption and guardianship assistance data file meets the data file 
standards in paragraph (c) of this section. Compliance is determined 
separately for each data file.
    (2) If each data file meets the data file standards, ACF will then 
determine whether each data file meets the data quality standards in 
paragraph (d) of this section. For every data element, we will divide 
the total number of applicable records in error (numerator) by the 
total number of applicable records (denominator), to determine whether 
the title IV-E agency has met the applicable data quality standards.
    (3) In general, a title IV-E agency that has not met either the 
data file formatting standards or data quality standards must submit a 
corrected data file(s) no later than when data is due for the 
subsequent six month report period (i.e., by May 15 and November 14), 
as applicable. ACF will determine that the corrected data file(s) is in 
compliance if it meets the data file and data standards in paragraphs 
(c) and (d) of this section. Exception: If ACF determines initially 
that the title IV-E agency's data file has not met the data quality 
standard related to tardy transactions, ACF will determine compliance 
with regard to the transaction dates only in the out-of-home care data 
file submitted for the subsequent report period.
    (f) Noncompliance. If the title IV-E agency does not submit a 
corrected data file, or submits a corrected data file that fails to 
meet the compliance standards in paragraphs (c) and (d) of this 
section, ACF will notify the title IV-E agency of such and apply 
penalties as provided in Sec.  1355.47.
    (g) Other assessments. ACF may use other monitoring tools or 
assessment procedures to determine whether the title IV-E agency is 
meeting all of the requirements of Sec. Sec.  1355.41 through 1355.45.


Sec.  1355.47  Penalties.

    (a) Federal funds subject to a penalty. The funds that are subject 
to a penalty are the title IV-E agency's claims for title IV-E foster 
care administration and training for the quarter in which the title IV-
E agency is required to submit the data files. For data files due on 
May 15, ACF will assess the penalty based on the title IV-E agency's 
claims for the third quarter of the Federal fiscal year. For data files 
due on November 14, ACF will assess the penalty based on the title IV-E 
agency's claims for the first quarter of the Federal fiscal year.
    (b) Penalty amounts. ACF will assess penalties in the following 
amounts:
    (1) First six month period. ACF will assess a penalty in the amount 
of one sixth of one percent (\1/6\ of 1%) of the funds described in 
paragraph (a) of this section for the first six month period in which 
the title IV-E agency's submitted corrected data file does not comply 
with Sec.  1355.46.
    (2) Subsequent six month periods. ACF will assess a penalty in the 
amount of one fourth of one percent (\1/4\ of 1%) of the funds 
described in paragraph (a) of this section for each subsequent six 
month period in which the title IV-E agency continues to be out of 
compliance.
    (c) Penalty reduction from grant. ACF will offset the title IV-E 
agency's title IV-E foster care grant award in the amount of the 
penalty from the title IV-E agency's claims following the title IV-E 
agency notification of ACF's final determination of noncompliance.
    (d) Appeals. The title IV-E agency may appeal ACF's final 
determination of noncompliance to the HHS Departmental Appeals Board 
pursuant to 45 CFR part 16.

Appendices A through E to Part 1355 [Removed]

0
5. Effective October 1, 2019, remove Appendices A through E to Part 
1355.

    Note: The following attachments will not appear in the Code of 
Federal Regulations.


                        Attachment A--Out-of-Home Care Data File Elements Sec.   1355.44
----------------------------------------------------------------------------------------------------------------
             Category                      Element           Reponses options            Section citation
----------------------------------------------------------------------------------------------------------------
General information...............  Title IV-E agency....  Name................  1355.44(a)(1).
                                    Report date..........  Date................  1355.44(a)(2).
                                    Local agency.........  Name................  1355.44(a)(3).
                                    Child record number..  Number..............  1355.44(a)(4).
Child information.................  Child's date of birth  Date................  1355.44(b)(1).
                                    Child's gender.......  Male................  1355.44(b)(2)(i).
                                                           Female..............
                                    Child's sexual         Straight or           1355.44(b)(2)(ii).
                                     orientation.           heterosexual.
                                                           Gay or lesbian
                                                           Bisexual
                                                           Don't know
                                                           Something else
                                                           Decline
                                                           Not applicable

[[Page 90585]]

 
                                    Reason to know a       ....................  1355.44(b)(3).
                                     child is an ``Indian
                                     child'' as defined
                                     in the Indian Child
                                     Welfare Act.
                                    Inquired with the      Yes.................  1355.44(b)(3)(i).
                                     child's biological    No..................
                                     or adoptive mother.   The biological or
                                                            adoptive mother is
                                                            deceased.
                                    Inquired with the      Yes.................  1355.44(b)(3)(ii).
                                     child's biological    No..................
                                     or adoptive father.   The biological or
                                                            adoptive father is
                                                            deceased.
                                    Inquired with the      Yes.................  1355.44(b)(3)(iii).
                                     child's Indian        No..................
                                     custodian.            Child does not have
                                                            an Indian custodian.
                                    Inquired with the      Yes.................  1355.44(b)(3)(iv).
                                     child's extended      No..................
                                     family.
                                    Inquired with the      Yes.................  1355.44(b)(3)(v).
                                     child.                No..................
                                    Child is a member or   Yes.................  1355.44(b)(3)(vi).
                                     eligible for          No..................
                                     membership in an      Unknown.............
                                     Indian tribe.
                                    Domicile or residence  Yes.................  1355.44(b)(3)(vii).
                                     of the child, the     No..................
                                     child's parent, or    Unknown.............
                                     the child's Indian
                                     custodian is on a
                                     reservation or in an
                                     Alaska Native
                                     village.
                                    Application of ICWA..  Yes.................  1355.44(b)(4).
                                                           No..................
                                    The date that the      Date................  1355.44(b)(4)(i).
                                     state title IV-E
                                     agency first
                                     discovered
                                     information
                                     indicating the child
                                     is or may be an
                                     Indian child as
                                     defined in ICWA.
                                    All federally          Name(s).............  1355.44(b)(4)(ii).
                                     recognized Indian
                                     tribe(s) that may
                                     potentially be the
                                     Indian child's
                                     tribe(s).
                                    Court determination    Yes, ICWA applies...  1355.44(b)(5).
                                     that ICWA applies.    No, ICWA does not
                                                            apply.
                                                           No court
                                                            determination.
                                    Date court determined  Date................  1355.44(b)(5)(i).
                                     that ICWA applies.
                                    Indian tribe that the  Name................  1355.44(b)(5)(ii).
                                     court determined is
                                     the Indian child's
                                     tribe for ICWA
                                     purposes.
                                    Notification.........  ....................  1355.44(b)(6).
                                    Whether the Indian     Yes.................  1355.44(b)(6)(i).
                                     child's parent or     No..................
                                     Indian custodian was
                                     sent legal notice
                                     more than 10 days
                                     prior to the first
                                     child custody
                                     proceeding in
                                     accordance with 25
                                     U.S.C. 1912(a).
                                    Whether the Indian     Yes.................  1355.44(b)(6)(ii).
                                     child's tribe(s) was  No..................
                                     sent legal notice
                                     more than 10 days
                                     prior to the first
                                     child custody
                                     proceedings in
                                     accordance with 25
                                     U.S.C. 1912(a).
                                    The Indian tribe(s)    Name(s).............  1355.44(b)(6)(iii).
                                     that were sent
                                     notice for a child
                                     custody proceeding
                                     as required in ICWA
                                     at 25 U.S.C. 1912(a).
                                    Request to transfer    Yes.................  1355.44(b)(7).
                                     to tribal court.      No..................
                                    Denial of transfer...  Yes.................  1355.44(b)(8).
                                                           No..................
                                    Either of the parents  Applies.............  1355.44(b)(8)(i).
                                     objected to           Does not apply......
                                     transferring the
                                     case to tribal court.
                                    The tribal court       Applies.............  1355.44(b)(8)(ii).
                                     declined the          Does not apply......
                                     transfer to the
                                     tribal court.
                                    The state court        Applies.............  1355.44(b)(8)(iii).
                                     determined good       Does not apply......
                                     cause exists for
                                     denying the transfer
                                     to tribal court.
                                    Child's race.........  ....................  1355.44(b)(9).
                                    Race--American Indian  Yes.................  1355.44(b)(9)(i).
                                     or Alaska Native.     No..................

[[Page 90586]]

 
                                    Race--Asian..........  Yes.................  1355.44(b)(9)(ii).
                                                           No..................
                                    Race--Black or         Yes.................  1355.44(b)(9)(iii).
                                     African America.      No..................
                                    Race--Native Hawaiian  Yes.................  1355.44(b)(9)(iv).
                                     or Other Pacific      No..................
                                     Islander.
                                    Race--White..........  Yes.................  1355.44(b)(9)(v).
                                                           No..................
                                    Race--Unknown........  Yes.................  1355.44(b)(9)(vi).
                                                           No..................
                                    Race--Abandoned......  Yes.................  1355.44(b)(9)(vii).
                                                           No..................
                                    Race--Declined.......  Yes.................  1355.44(b)(9)(viii).
                                                           No..................
                                    Child's Hispanic or    Yes.................  1355.44(b)(10).
                                     Latino ethnicity.     No..................
                                                           Unknown.............
                                                           Abandoned...........
                                                           Declined............
                                    Health assessment....  Yes.................  1355.44(b)(11)(i).
                                                           No..................
                                    Date of health         Date................  1355.44(b)(11)(ii).
                                     assessment.
                                    Timely health          Yes.................  1355.44(b)(12).
                                     assessment.           No..................
                                    Health, behavioral or  Child has a           1355.44(b)(13).
                                     mental health          diagnosed condition.
                                     conditions.           No exam or
                                                            assessment
                                                            conducted.
                                                           Exam or assessment
                                                            conducted and none
                                                            of the conditions
                                                            apply.
                                                           Exam or assessment
                                                            conducted but
                                                            results not
                                                            received.
                                    Intellectual           Existing condition..  1355.44(b)(13)(i).
                                     disability.
                                                           Previous condition
                                                           Does not apply
                                    Autism spectrum        Existing condition..  1355.44(b)(13)(ii).
                                     disorder.
                                                           Previous condition
                                                           Does not apply
                                    Visual impairment and  Existing condition..  1355.44(b)(13)(iii).
                                     blindness.
                                                           Previous condition
                                                           Does not apply
                                    Hearing impairment     Existing condition..  1355.44(b)(13)(iv).
                                     and deafness.
                                                           Previous condition
                                                           Does not apply
                                    Orthopedic impairment  Existing condition..  1355.44(b)(13)(v).
                                     or other physical     Previous condition..
                                     condition.            Does not apply......
                                    Mental/emotional       Existing condition..  1355.44(b)(13)(vi).
                                     disorders.
                                                           Previous condition
                                                           Does not apply
                                    Attention deficit      Existing condition..  1355.44(b)(13)(vii).
                                     hyperactivity         Previous condition..
                                     disorder.             Does not apply......
                                    Serious mental         Existing condition..  1355.44(b)(13)(viii).
                                     disorders.
                                                           Previous condition
                                                           Does not apply
                                    Developmental delay..  Existing condition..  1355.44(b)(13)(ix).
                                                           Previous condition
                                                           Does not apply
                                    Developmental          Existing condition..  1355.44(b)(13)(x).
                                     disability.
                                                           Previous condition
                                                           Does not apply
                                    Other diagnosed        Existing condition..  1355.44(b)(13)(xi).
                                     condition.
                                                           Previous condition
                                                           Does not apply
                                    School enrollment....  Elementary..........  1355.44(b)(14).
                                                           Secondary
                                                           Post-secondary
                                                            education or
                                                            training
                                                           College
                                                           Not school-age
                                                           Not enrolled
                                    Educational level....  Not school-age......  1355.44(b)(15).
                                                           Kindergarten
                                                           1st grade

[[Page 90587]]

 
                                                           2nd grade
                                                           3rd grade
                                                           4th grade
                                                           5th grade
                                                           6th grade
                                                           7th grade
                                                           8th grade
                                                           9th grade
                                                           10th grade
                                                           11th grade
                                                           12th grade
                                                           GED
                                                           Post-secondary
                                                            education or
                                                            training
                                                           College
                                    Educational stability  Yes.................  1355.44(b)(16).
                                                           No
                                    Proximity............  Applies.............  1355.44(b)(16)(i).
                                                           Does not apply
                                    District/zoning rules  Applies.............  1355.44(b)(16)(ii).
                                                           Does not apply
                                    Residential facility.  Applies.............  1355.44(b)(16)(iii).
                                                           Does not apply
                                    Services/programs....  Applies.............  1355.44(b)(16)(iv).
                                                           Does not apply
                                    Child request........  Applies.............  1355.44(b)(16)(v).
                                                           Does not apply
                                    Parent/Legal guardian  Applies.............  1355.44(b)(16)(vi).
                                     request.
                                                           Does not apply
                                    Other................  Applies.............  1355.44(b)(16)(vii).
                                                           Does not apply
                                    Pregnant or parenting  ....................  1355.44(b)(17).
                                    Child is pregnant as   Yes.................  1355.44(b)(17)(i).
                                     of end of report      No..................
                                     period.
                                    Child has ever         Yes.................  1355.44(b)(17)(ii).
                                     fathered or bore a    No..................
                                     child.
                                    Child and his/her      Yes.................  1355.44(b)(17)(iii).
                                     child(re) are placed  No..................
                                     together at any       Not applicable......
                                     point during the
                                     report period.
                                    Special education....  Yes.................  1355.44(b)(18).
                                                           No
                                    Prior adoption.......  Yes.................  1355.44(b)(19).
                                                           No abandoned
                                    Prior adoption date..  Date................  1355.44(b)(19)(i).
                                    Prior adoption         Yes.................  1355.44(b)(19)(ii).
                                     intercountry.
                                                           No
                                    Prior guardianship...  Yes.................  1355.44(b)(20)(i).
                                                           No
                                                           Abandoned
                                    Prior guardianship     Date................  1355.44(b)(20)(ii).
                                     date.
                                    Child financial and    Child has received    1355.44(b)(21).
                                     medical assistance.    support/assistance
                                                           No support/
                                                            assistance received
                                    SSI or Social          Applies.............  1355.44(b)(21)(i).
                                     Security benefits.    Does not apply......
                                    Title XIX Medicaid...  Applies.............  1355.44(b)(21)(ii).
                                                           Does not apply
                                    Title XXI SCHIP......  Applies.............  1355.44(b)(21)(iii).
                                                           Does not apply
                                    State/Tribal adoption  Applies.............  1355.44(b)(21)(iv).
                                     assistance.           Does not apply......
                                    State/Tribal foster    Applies.............  1355.44(b)(21)(v).
                                     care.                 Does not apply......
                                    Child support........  Applies.............  1355.44(b)(21)(vi).
                                                           Does not apply
                                    Title IV-E adoption    Applies.............  1355.44(b)(21)(vii).
                                     subsidy.              Does not apply......
                                    Title IV-E             Applies.............  1355.44(b)(21)(viii).
                                     guardianship          Does not apply......
                                     assistance.
                                    Title IV-A TANF......  Applies.............  1355.44(b)(21)(ix).
                                                           Does not apply
                                    Title IV-B...........  Applies.............  1355.44(b)(21)(x).
                                                           Does not apply
                                    SSBG.................  Applies.............  1355.44(b)(21)(xi).

[[Page 90588]]

 
                                                           Does not apply
                                    Chafee Foster Care     Applies.............  1355.44(b)(xii).
                                     Independence Program. Does not apply......
                                    Other................  Applies.............  1355.44(b)(xiii).
                                                           Does not apply
                                    Title IV-E foster      Yes.................  1355.44(b)(22).
                                     care during report    No..................
                                     period.
                                    Total number of        Number..............  1355.44(b)(23).
                                     siblings.
                                    Siblings in foster     Number..............  1355.44(b)(24).
                                     care.
                                    Siblings in living     Number..............  1355.44(b)(25).
                                     arrangement.
Parent or legal guardian            Year of birth of       Date................  1355.44(c)(1).
 information.                        first parent or
                                     legal guardian.
                                    Year of birth of       Date................  1355.44(c)(2).
                                     second parent or
                                     legal guardian.
                                    Tribal membership      Yes.................  1355.44(c)(3).
                                     mother.               No..................
                                                           Unknown.............
                                    Tribal membership      Yes.................  1355.44(c)(4).
                                     father.               No..................
                                                           Unknown.............
                                    Termination/           Voluntary...........  1355.44(c)(5).
                                     modification of       Involuntary.........
                                     parental rights.      Not applicable......
                                    Termination/           Date................  1355.44(c)(5)(i).
                                     modification of
                                     parental rights
                                     petition.
                                    Termination/           Date................  1355.44(c)(5)(ii).
                                     modification of
                                     parental rights.
                                    Involuntary            ....................  1355.44(c)(6).
                                     termination/
                                     modification of
                                     parental rights
                                     under ICWA.
                                    State court found      Yes.................  1355.44(c)(6)(i).
                                     beyond reasonable     No..................
                                     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).
                                    Court decision to      Yes.................  1355.44(c)(6)(ii).
                                     involuntary           No..................
                                     terminate parental
                                     rights included the
                                     testimony of one or
                                     more qualified
                                     expert witnesses in
                                     accordance with 25
                                     U.S.C. 1912(f).
                                    Prior to terminating   Yes.................  1355.44(c)(6)(iii).
                                     parental rights, the  No..................
                                     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).
                                    Voluntary termination/ Yes.................  1355.44(c)(7).
                                     modification of       No..................
                                     parental rights
                                     under ICWA.
Removal information...............  Date of child's        Date................  1355.44(d)(1).
                                     removal.
                                    Removal transaction    Date................  1355.44(d)(2).
                                     date.
                                    Removals under ICWA..  ....................  1355.44(d)(3).
                                    Court order for        Yes.................  1355.44(d)(3)(i).
                                     foster care           No..................
                                     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 121(a).
                                    Evidence presented     Yes.................  1355.44(d)(3)(ii).
                                     for foster care       No..................
                                     placement as
                                     indicated in
                                     paragraph (d)(3)(i)
                                     included the
                                     testimony of a
                                     qualified expert
                                     witness in
                                     accordance with 25
                                     U.S.C. 1912(e) and
                                     25 CFR 121(a).

[[Page 90589]]

 
                                    Evidence presented     Yes.................  1355.44(d)(3)(iii).
                                     for foster care       No..................
                                     placement as
                                     indicated in
                                     paragraph (d)(3)(i)
                                     indicates that prior
                                     to each removal
                                     reported in
                                     paragraph (d)(1)
                                     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).
                                    Environment at         Parent household....  1355.44(d)(4).
                                     removal.              Relative household..
                                                           Legal guardian
                                                            household
                                                           Relative legal
                                                            guardian household
                                                           Justice facility
                                                           Medical/mental
                                                            health facility
                                                           Other
                                    Authority for          Court ordered.......  1355.44(d)(5).
                                     placement and care    Voluntary placement
                                     responsibility.        agreement.
                                                           Not yet determined
                                    Child and family       ....................  1355.44(d)(6).
                                     circumstances at
                                     removal.
                                    Runaway..............  Applies.............  1355.44(d)(6)(i).
                                                           Does not apply
                                    Whereabouts unknown..  Applies.............  1355.44(d)(6)(ii).
                                                           Does not apply......
                                    Physical abuse.......  Applies.............  1355.44(d)(6)(iii).
                                                           Does not apply
                                    Sexual abuse.........  Applies.............  1355.44(d)(6)(iv).
                                                           Does not apply
                                    Psychological or       Applies.............  1355.44(d)(6)(v).
                                     emotional abuse.      Does not apply......
                                    Neglect..............  Applies.............  1355.44(d)(6)(vi)
                                                           Does not apply
                                    Medical neglect......  Applies.............  1355.44(d)(6)(vii).
                                                           Does not apply
                                    Domestic violence....  Applies.............  1355.44(d)(6)(viii).
                                                           Does not apply
                                    Abandonment..........  Applies.............  1355.44(d)(6)(ix).
                                                           Does not apply
                                    Failure to return....  Applies.............  1355.44(d)(6)(x).
                                                           Does not apply
                                    Caretaker's alcohol    Applies.............  1355.44(d)(6)(xi).
                                     use.                  Does not apply......
                                    Caretaker's drug use.  Applies.............  1355.44(d)(6)(xii).
                                                           Does not apply
                                    Child alcohol use....  Applies.............  1355.44(d)(6)(xiii).
                                                           Does not apply
                                    Child drug use.......  Applies.............  1355.44(d)(6)(xiv).
                                                           Does not apply
                                    Prenatal alcohol       Applies.............  1355.44(d)(6)(xv).
                                     exposure.             Does not apply......
                                    Prenatal drug          Applies.............  1355.44(d)(6)(xvi).
                                     exposure.             Does not apply......
                                    Diagnosed condition..  Applies.............  1355.44(d)(6)(xvii).
                                                           Does not apply
                                    Inadequate access to   Applies.............  1355.44(d)(6)(xviii).
                                     mental health         Does not apply......
                                     services.
                                    Inadequate access to   Applies.............  1355.44(d)(6)(xix).
                                     medical services.     Does not apply......
                                    Child behavior         Applies.............  1355.44(d)(6)(xx).
                                     problem.              Does not apply......
                                    Death of caretaker...  Applies.............  1355.44(d)(6)(xxi).
                                                           Does not apply
                                    Incarceration of       Applies.............  1355.44(d)(6)(xxii).
                                     caretaker.            Does not apply......
                                    Caretaker's            Applies.............  1355.44(d)(6)(xxiii).
                                     significant           Does not apply......
                                     impairment--physical/
                                     emotional.
                                    Caretaker's            Applies.............  1355.44(d)(6)(xxiv).
                                     significant           Does not apply......
                                     impairment--cognitiv
                                     e.
                                    Inadequate housing...  Applies.............  1355.44(d)(6)(xxv).
                                                           Does not apply

[[Page 90590]]

 
                                    Voluntary              Applies.............  1355.44(d)(6)(xxvi).
                                     relinquishment for    Does not apply......
                                     adoption.
                                    Child requested        Applies.............  1355.44(d)(6)(xxvii).
                                     placement.            Does not apply......
                                    Sex trafficking......  Applies.............  1355.44(d)(6)(xxviii).
                                                           Does not apply
                                    Parental immigration   Applies.............  1355.44(d)(6)(xxix).
                                     detainment or         Does not apply......
                                     deportation.
                                    Family conflict        Applies.............  1355.44(d)(6)(xxx).
                                     related to child's    Does not apply......
                                     sexual orientation,
                                     gender identity, or
                                     gender expression.
                                    Educational neglect..  Applies.............  1355.44(d)(6)(xxxi).
                                                           Does not apply
                                    Public agency title    Applies.............  1355.44(d)(6)(xxxii).
                                     IV-E agreement.       Does not apply......
                                    Tribal title IV-E      Applies.............  1355.44(d)(6)(xxxiii).
                                     agreement.            Does not apply......
                                    Homelessness.........  Applies.............  1355.44(d)(6)(xxxiv).
                                                           Does not apply
                                    Victim of sex          Yes.................  1355.44(d)(7).
                                     trafficking prior to  No..................
                                     entering foster care.
                                    Report to law          Yes.................  1355.44(d)(7)(i).
                                     enforcement.          No..................
                                    Date.................  Date................  1355.44(d)(7)(ii)
                                    Victim of sex          Yes.................  1355.44(d)(8).
                                     trafficking while in  No..................
                                     foster care.
                                    Report to law          Yes.................  1355.44(d)(8)(i).
                                     enforcement.          No..................
                                    Date.................  Date................  1355.44(d)(8)(ii)
Living arrangement and provider     Date of living         Date                  1355.44(e)(1)
 information.                        arrangement           Yes.................  1355.44(e)(2)
                                    Foster family home...
                                                           No
                                    Foster family home     ....................  1355.44(e)(3)
                                     type.
                                    Licensed home........  Applies.............  1355.44(e)(3)(i).
                                                           Does not apply
                                    Therapeutic foster     Applies.............  1355.44(e)(3)(ii).
                                     family home.          Does not apply......
                                    Shelter care foster    Applies.............  1355.44(e)(3)(iii).
                                     family home.          Does not apply......
                                    Relative foster        Applies.............  1355.44(e)(3)(iv).
                                     family home.          Does not apply......
                                    Pre-adoptive home....  Applies.............  1355.44(e)(3)(v).
                                                           Does not apply
                                    Kin foster family      Applies.............  1355.44(e)(3)(vi).
                                     home.
                                                           Does not apply
                                    Other living           Group home-family     1355.44(e)(4).
                                     arrangement type.      operated.
                                                           Group home-staff
                                                            operated
                                                           Group home-shelter
                                                            care
                                                           Residential
                                                            treatment center
                                                           Child care
                                                            institution
                                                           Child care
                                                            institution-shelter
                                                            care
                                                           Supervised
                                                            independent living
                                                           Juvenile justice
                                                            facility
                                                           Medical or
                                                            rehabilitative
                                                            facility
                                                           Psychiatric hospital
                                                           Runaway
                                                           Whereabouts unknown
                                                           Placed at home
                                    Private agency living  Private agency        1355.44(e)(5)
                                     arrangement.           involvement.
                                                           No private agency
                                                            involvement
                                    Location of living     Out-of-state or out-  1355.44(e)(6).
                                     arrangement.           of-tribal service
                                                            area
                                                           In-state or in-
                                                            tribal service area
                                                           Out-of-country
                                                           Runaway or
                                                            whereabouts Unknown
                                    Jurisdiction or        Name................  1355.44(e)(7).
                                     country where child
                                     is living.
                                    Available ICWA foster  ....................  1355.44(e)(8).
                                     care and pre-
                                     adoptive placement
                                     preferences.
                                    A member of the        Yes.................  1355.44(e)(8)(i).
                                     Indian's extended     No..................
                                     family.

[[Page 90591]]

 
                                    A foster home          Yes.................  1355.44(e)(8)(ii).
                                     licensed, approved,   No..................
                                     or specified by the
                                     Indian child's tribe.
                                    An Indian foster home  Yes.................  1355.44(e)(8)(iii).
                                     licensed or approved  No..................
                                     by an authorized non-
                                     Indian licensing
                                     authority.
                                    An institution for     Yes.................  1355.44(e)(8)(iv).
                                     children approved by  No..................
                                     an Indian tribe or
                                     operated by an
                                     Indian organization
                                     which has a program
                                     suitable to meet the
                                     Indian child's needs.
                                    A placement that       Yes.................  1355.44(e)(8)(v).
                                     complies with the     No..................
                                     order of preference
                                     for foster care or
                                     pre-adoptive
                                     placements
                                     established by an
                                     Indian child's
                                     tribe, in accordance
                                     with 25 U.S.C.
                                     1915(c).
                                    Foster care and pre-   A member of the       1355.44(e)(9).
                                     adoptive placements    Indian child's
                                     preferences under      extended family
                                     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
                                                           A placement that
                                                            complies with the
                                                            order of preference
                                                            for foster care or
                                                            pre-adoptive
                                                            placements
                                                            established by an
                                                            Indian child's
                                                            tribe, in
                                                            accordance with 25
                                                            U.S.C. 1915(c)
                                                           Placement does not
                                                            meet ICWA placement
                                                            preferences
                                    Good cause under ICWA  Yes.................  1355.44(e)(10).
                                                           No..................
                                    Basis for good cause.  ....................  1355.44(e)(11)
                                    Request of one or      Yes.................  1355.44(e)(11)(i).
                                     both of the Indian    No..................
                                     child's parents.
                                    Request of the Indian  Yes.................  1355.44(e)(11)(ii).
                                     child.                No..................
                                    Unavailability of      Yes.................  1355.44(e)(11)(iii).
                                     suitable placement    No..................
                                     after a
                                     determination by the
                                     court that a
                                     diligent search was
                                     conducted to find
                                     suitable placements
                                     meeting the
                                     placement
                                     preferences in ICWA
                                     art 25 U.S.C. 1915
                                     but none has been
                                     located.
                                    Extraordinary          Yes.................  1355.44(e)(11)(iv).
                                     physical, mental or   No..................
                                     emotional needs of
                                     the Indian child,
                                     such as specialized