Separate Licensing Standards for Relative or Kinship Foster Family Homes, 9411-9420 [2023-03005]
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DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Children and
Families
45 CFR Part 1355 and 1356
RIN 0970–AC91
Separate Licensing Standards for
Relative or Kinship Foster Family
Homes
Children’s Bureau (CB);
Administration on Children, Youth and
Families (ACYF); Administration for
Children and Families (ACF);
Department of Health and Human
Services (HHS).
ACTION: Notice of proposed rulemaking.
AGENCY:
ACF is proposing to revise the
definition of ‘‘foster family home’’ to
allow each title IV–E agency to adopt
foster family home licensing or approval
standards for foster family homes of
individuals related to a child by blood,
marriage, or adoption and other
individuals who have an emotionally
significant relationship with the child,
including fictive kin, (referred herein as
‘‘relative(s) and kin(ship)’’) that differ
from non-relative foster family homes
agency standards. In this context, a
‘‘non-relative’’ foster family home
means a home of an unrelated
individual who is not kin or fictive kin.
This notice of proposed rulemaking
(NPRM) would allow a title IV–E agency
to claim title IV–E federal financial
participation (FFP) for the cost of foster
care maintenance payments (FCMP) on
behalf of an otherwise eligible child
who is placed in a relative or kinship
licensed or approved foster family home
when the agency uses different licensing
or approval standards for relative or
kinship foster family homes and nonrelative foster family homes. In
addition, the NPRM would amend the
requirement that title IV–E agencies
review the amount of FCMPs to also
assure that the agency provides a
licensed or approved relative and
kinship foster family home the same
amount of FCMP that would have been
made if the child was placed in a nonrelated foster family home.
DATES: In order to be considered, ACF
must receive written comments on this
NPRM on or before April 17, 2023.
ADDRESSES: ACF encourages the public
to submit comments electronically to
ensure they are received in a timely
manner. Please be sure to include
identifying information on any
correspondence. To download an
electronic version of the proposed rule,
SUMMARY:
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please go to https://www.regulations.gov/.
You may submit comments, identified
by docket number, by any of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Email: CBComments@acf.hhs.gov.
Include [docket number and/or
Regulatory Information Number (RIN)
number] in subject line of the message.
Instructions: All submissions received
must include the agency name and
docket number or RIN for this
rulemaking. All comments received will
be posted without change to
www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT:
Kathleen McHugh, Director, Policy
Division, Children’s Bureau, (202) 401–
5789 cbcomments@acf.hhs.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority To Issue NPRM
II. Background
III. Section-by-Section Discussion of
Proposed Regulatory Changes
IV. Regulatory Process Matters
V. Tribal Consultation Statement
I. Statutory Authority
This NPRM is published under the
authority granted to the Secretary of
Health and Human Services (the
Secretary) by section 1102 of the Social
Security Act (the Act), 42 U.S.C. 1302.
Section 1102 of the Act authorizes the
Secretary to publish regulations, not
inconsistent with the Act, as may be
necessary for the efficient
administration of the functions with
which the Secretary is responsible
under the Act.
II. Background
When parents are unable to safely
care for their own children, it is often
grandparents, other relatives, or kin who
step forward to provide a loving home
for those children, either temporarily or
permanently. All over the nation, there
is a preference to prioritize placing
children entering foster care with
relatives and kin over non-relative foster
families when appropriate (‘‘How can
we prioritize kin in the home study and
licensure process, and make placement
with relatives the norm?’’ Casey Family
Programs, 2020.). This preference stems
from the knowledge that it is generally
best for children to be with family and
also from the increasing shortage of
qualified foster parents (Miller, Jennifer,
‘‘Creating a Kin-First Culture,’’
American Bar Association, July 1, 2017).
The Government Accountability Office
found ‘‘in 2018, an estimated 2.7
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million children lived with kin
caregivers—grandparents, other
relatives, or close family friends—
because their parents were unable to
care for them.’’ (U.S. Government
Accountability Office, Child Welfare
and Aging Programs: HHS Could
Enhance Support for Grandparents and
Other Relative Caregivers (GAO–20–
434), July 2020).
Title IV–E agencies have discretion to
define ‘‘relative’’ and ‘‘kin’’ with regard
to licensing standards. The definitions
among title IV–E agencies vary, and
sometimes ‘‘kin’’ is used more broadly
than ‘‘relative’’. Fictive kin often
include people who are not related by
blood, marriage or adoption, but who
have an emotionally significant
relationship with the child, and those
who are treated ‘‘like family.’’
(American Bar Association, Legally
Recognized Fictive Kin Relationships: A
Call for Action, March 1, 2022). For
purpose of this NPRM, we use the term
‘‘relative(s) and kin(ship)’’ to allow title
IV–E agencies to adopt one set of
licensing or approval standards for
individuals related to a child by blood,
marriage or adoption and other
individuals who have an emotionally
significant relationship with the child,
including fictive kin, that is different
from the licensing or approval standards
used for non-relative foster family
homes. A child is in foster care when a
title IV–E agency has placement and
care responsibility for a child, removes
the child from the parent’s home, and
places the child in 24-hour substitute
care (45 CFR 1355.20). A child is in
foster care in accordance with this
definition regardless of whether the
placement is licensed or approved and
payments are made by the state or tribe
for the care of the child (45 CFR
1355.20). Placement and care
responsibility means that a title IV–E
agency is legally accountable for the
day-to-day care and protection of the
child, decides with whom the child in
foster care will be placed, and provides
the child with federally mandated
protections such as case plans and court
reviews (sections 471(a)(16) and 475(5)
of the Act; CWPM 8.3A.12 #4). We also
use the terms ‘‘licensing’’ and
‘‘approval’’ interchangeably, depending
on the state terminology (65 FR 4020 at
4032; CWPM 8.3A.8c #5). Each state and
tribe operating a title IV–E program
must designate an authority responsible
for establishing and maintaining
licensing or approval standards for
foster family homes.
Encouraging and assisting relative and
kin caregivers to become a licensed or
approved foster care placement is
important, in part, because it allows
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families to receive financial support
through FCMPs (sections 472(b)(1) and
(c)(1) of the Act and section I of ACYF–
CB–PI–10–11). Licensing or approval is
also one component of eligibility for the
title IV–E Kinship Guardianship
Assistance Program, which can provide
longer-term financial support and
benefits to a guardian that provides
permanency to a child who cannot
safely return home (section
473(d)(3)(A)(i)(II) of the Act). The
section-by-section discusses other
reasons why licensing or approving
relative and kinship foster family homes
is important for children in foster care.
Although the Act includes provisions
requiring each agency to give priority
consideration to relatives as foster care
placements over a non-related caregiver
when determining an out-of-home
placement for a child, we understand
that title IV–E agencies take varied
approaches to licensing and approving
relative and kin foster family homes.
Research identifies that many agencies
have policies that prioritize placements
with appropriate relatives and kin and
provide them with an option to become
a licensed or approved foster parent so
that they may receive FCMPs (Beltran,
Ana, and Redlich Epstein, Heidi.
Improving Foster Care Licensing
Standards around the United States:
Using Research Findings to Effect
Change. Washington, DC: Generations
United and American Bar Association,
February 2013). Conversely, research
also shows that some agencies may not
routinely pursue licensing and
approving relatives or kin as a possible
licensed foster care placement for a
child. For example, relatives and kin
who provide care for a child in foster
care may be denied a foster family home
license or approval because they have
not met strict licensing standards,
including non-safety standards that the
state may waive under current federal
law. Thus, the relative or kin caregiver
is not eligible for FCMPs.
State licensing and approval
standards for foster family homes were
developed before research demonstrated
that relative and kinship care is often
the best option for children in foster
care. As a result, standards were created
to ensure safety for children living with
someone they did not know, making
many licensing standards irrelevant for
children living with a relative or kin
(Miller, ‘‘Creating a Kin-First Culture,’’
July 1, 2017). For example:
• The Act requires only that licensing
or approval standards established by the
state or tribe are reasonably in
accordance with recommended
standards of national organizations for
foster family homes related to admission
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policies, safety, sanitation, protection of
civil rights, and use of the reasonable
and prudent parenting standard (section
471(a)(10)(A) of the Act), and that the
caregiver fully meet federal
requirements under section 471(a)(20) of
the Act (concerning criminal
background checks for all foster
parents). However, in 2000, ACF
promulgated regulations that interpreted
the Act to require that each state
establish and apply its licensing or
approval standards to all relative and
non-relative foster family homes equally
(45 CFR 1355.20). A title IV–E agency
may waive non-safety-related licensing
or approval standards for relative foster
family homes on a case-by-case basis
(section 471(a)(10)(D) of the Act). In
2020, ACF reported that 42 states, the
District of Columbia, Puerto Rico, the
Virgin Islands, and 3 tribes reported
using waivers for non-safety licensing
standards for relative foster family
homes. Examples of non-safety waivers
include waiving requirements for the
home itself (the physical dimensions of
home, room size requirements, the size
and location of bedrooms, well water
testing, proximity of the relative foster
care provider’s home to the child’s
parents), financial standards of the
kinship caregiver, pre-service or training
standards, and the age and marital
status of the caregiver (ACYF–CB–IM–
20–08). However, the Act does not allow
a title IV–E agency to establish a policy
or procedure that provides a blanket
waiver of the standards for licensing or
approving relative foster family homes
(section 471(a)(10)(D) of the Act).
Subsequent research found that,
partially as a result of the 2000 rule,
more than half of states changed their
licensing standards. Some states
implemented stricter licensing
standards for relatives than they had
previously. Many states that had
standards specific to licensing relatives
and kin repealed those standards in
their entirety (Beltran and Redlich
Epstein, Improving Foster Care
Licensing Standards around the United
States: Using Research Findings to
Effect Change, February 2013).
State licensing or approval standards
developed for un-related foster parents
also may be unnecessary for relative or
kin foster parents. For example, many
states require the same time-consuming
and intensive foster parent training
classes for relatives and kin as they do
for non-relatives. However, relative
caregivers may require a different level
or type of foster parent training to take
care of their kin, particularly when they
already know the child for whom they
are going to provide care. Non-relative
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foster parents may need training about
how to integrate a child into a home
with which the child is unfamiliar, or
how to determine the child’s interests
and skills. Similarly, in contrast with
non-relative foster parents, who prepare
for the arrival of children in foster care
over months and years, relatives often
receive a request to care for a child in
emergency situations. In addition,
relatives become licensed to care for a
child who is a relative, not because they
want to be a foster parent to children in
foster care. Therefore, relative licensing
standards that allow for training that is
condensed and more relevant to relative
and kinship families along with the
necessary essential agency support for
foster parents could pave the way to
remove barriers to licensing relatives
(Miller, ‘‘Creating a Kin-First Culture,’’
July 1, 2017). Several examples of
condensed training may be found on
pages 5 and 6 of ACYF–CB–IM–20–08.
Title IV–E of the Act includes
provisions requiring each agency to
identify relatives of a child placed in
foster care and to give priority
consideration to relatives as foster care
placements. Specifically, a title IV–E
agency shall consider giving preference
to an adult relative over a non-related
caregiver when determining an out-ofhome placement for a child, provided
that the relative caregiver meets all
relevant state or tribal child protection
standards (section 471(a)(19) of the Act).
Also, the Act requires that within 30
days after the removal of a child from
their home, the title IV–E agency must
exercise due diligence to identify and
provide notice to certain relatives that
the child has been or is being removed
from the home, explain the options for
relatives to participate in the care and
placement of the child, describe how to
become a foster family home, describe
the additional services and supports
that are available to the relative, as well
as how a relative guardian of the child
may participate in the title IV–E Kinship
Guardianship Assistance Program if the
title IV–E agency elected to operate the
optional program (section 471(a)(29) of
the Act).
This NPRM would allow a title IV–E
agency to adopt one set of licensing or
approval standards for all relative or
kinship foster family homes that is
different from the licensing or approval
standards used for non-relative foster
family homes. ACF encourages title IV–
E agencies to adopt licensing or
approval standards for all relative or
kinship foster family homes that place
as few burdens on such families as
possible, consistent with ensuring the
safety and wellbeing of children in
foster care. Specifically, ACF
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encourages title IV–E agencies to
strongly consider developing standards
for relative and kinship foster family
homes that meet only the requirements
in the Act described earlier (i.e., section
471(a)(10)(A) and (a)(20)), and not
additional standards the agency requires
non-relative foster family homes to
meet. This eliminates the need for
agencies to issue non-safety related
waivers to relatives on a case-by-case
basis which can delay the licensure
process.
Finally, title IV–E of the Act and
regulations require title IV–E agencies to
provide a periodic review of the
standards referred to in the preceding
paragraph and amounts paid as foster
care maintenance payments and
adoption assistance to assure their
continuing appropriateness (section
471(a)(11) of the Act; 45 CFR
1356.21(m)). The NPRM would also
revise this requirement to assure that
the agency provides a licensed or
approved relative and kinship foster
family home the same amount of foster
care maintenance payments that would
have been made if the child was placed
in a non-related foster family home.
III. Section-by-Section Discussion of
Proposed Regulatory Changes
Section § 1355.20
ACF proposes to revise the definition
of ‘‘foster family home’’ by removing
‘‘Foster family homes that are approved
must be held to the same standards as
foster family homes that are licensed[.]’’
and replacing it with ‘‘Agencies may
establish foster family home licensing or
approval standards for all relative or
kinship foster family homes that are
different from standards for non-relative
foster family homes.’’ This would allow
a title IV–E agency to establish a set of
foster family home licensing or approval
standards that apply to all relative or
kinship foster family homes, and that
are different from non-relative foster
family homes. An agency may also
designate different names for the
different type of standards. For example,
an agency may designate the term
‘‘approval’’ to relative foster family
home standards for relatives, and
‘‘licensing’’ to non-relative foster family
homes. However, all standards and
foster family homes must meet the
requirements under title IV–E of the
Act.
As a result of this NPRM, a title IV–
E agency would be able to remove a
possible barrier to claiming title IV–E
FCMP on behalf of an otherwise eligible
child who is placed in a licensed or
approved relative or kinship foster
family home. For example, the agency
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could require that relative and kinship
families only meet the licensing
requirements in the Act stated earlier,
and not additional standards the agency
requires non-relative foster family
homes to meet. Or, the agency could
implement state or tribal licensing
standards for all relative or kinship
foster family homes to extend age limits
for relative or kinship foster care
providers; allow relative children to
share sleeping spaces; disregard certain
income, transportation, literacy,
language, and education requirements;
and remove disqualifications for nonchild-related past crimes such as issuing
bad checks (Beltran and Redlich
Epstein, Improving Foster Care
Licensing Standards around the United
States: Using Research Findings to
Effect Change, February 2013; ; ‘‘How
can we prioritize kin in the home study
and licensure process, and make
placement with relatives the norm?’’
Casey Family Programs, 2020.). A title
IV–E agency has the discretion to define
who is a relative or kinship provider in
reference to this regulatory change.
This NPRM proposes to allow title
IV–E agencies to establish a set of foster
family home licensing or approval
standards that apply to all relative or
kinship foster family homes, for several
reasons. First, this proposed change is
consistent with long-standing
recommendations of stakeholders and
experts in child welfare to license or
approve more relative and kinship foster
family homes to significantly increase
the services and financial resources
available to relative and kinship
caregivers., ACF has heard from
stakeholders and discussed their
recommendations. Second, placing
children in licensed or approved
relative foster family homes has
multiple benefits to relatives and
children. Third, the proposed change
allows title IV–E agencies more
flexibility without compromising child
safety and well-being.
The current regulation requires the
same licensing or approval standards for
all foster family homes. This can lead to
placing children with unlicensed
relative foster family caregivers because
some relatives are not able to meet the
agency’s licensing or approval
standards. (Children’s Defense Fund.
Recommendations to Ensure Children’s
Well-being through Support of Kinship
Caregivers). Stakeholders in the child
welfare community have long advocated
for a change to federal regulations that
would remove common licensing
barriers for relatives and kin, and allow
foster family home licensing or approval
standards that reflect the unique needs
and circumstances of relative and
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kinship caregivers (‘‘How can we
prioritize kin in the home study and
licensure process, and make placement
with relatives the norm?’’ Casey Family
Programs, 2020). Allowing more
relatives and kin to become licensed or
approved as foster parents would
significantly increase the services and
financial resources available to kin
caregivers. (Foster Family-based
Treatment Association. The Kinship
Treatment Foster Care Initiative Toolkit.
Hackensack, NJ: Foster Family-Based
Treatment Association, 2015, Page 14).
Most children in nonparental care lived
with grandparents (63%), others lived
with foster parents (15%), some of
whom were related, or with other
relatives and nonrelatives such as aunts,
godparents, or friends (22%) (Radel,
Bramlett, Chow, Waters, 2016). Many
relatives who care for their kin are
older, more likely to be single, more
likely to be African American, more
likely to live in poverty, and more likely
to be less well educated (Bramlett,
Radel, Chow, 2017) (U.S. Government
Accountability Office, Child Welfare
and Aging Programs: HHS Could
Enhance Support for Grandparents and
Other Relative Caregivers (GAO–20–
434), July 2020);). When children are
placed with relative caregivers, it is
most often in emergency situations
which may result in unanticipated
expenses. Many relatives, especially
those on a fixed income cannot
financially afford to care for their kin in
the child welfare system unless they
receive support. Relatives who do not
meet licensing standards are not eligible
for title IV–E FCMP and instead rely on
financial assistance from Temporary
Assistance for Needy Families (TANF).
TANF typically provides less than half
of the monthly FCMP. Lower foster care
payments for kinship care providers
negatively affects the number of
relatives that can care for children
(‘‘How can we prioritize kin in the home
study and licensure process, and make
placement with relatives the norm?’’
Casey Family Programs, 2020). Thus,
relatives are often in greater need of
financial support; providing care for a
child who has been removed from home
places financial strains on the relatives
providing that care. This NPRM can
help low-income families who are
adversely affected by poverty and
struggling to raise their kin by providing
financial assistance to maintain the
child in the relative’s home until the
child can be reunified.
Second, allowing a title IV–E agency
to establish different foster family home
licensing or approval standards for all
relative or kinship foster family homes
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so that more children can be placed
with relatives and kin has multiple
benefits to relatives and to children.
Research confirms that children in
foster care often do best when placed
with relatives and kin and that family
connections are critical to healthy child
development and a sense of belonging
(Miller, ‘‘Creating a Kin-First Culture,’’
July 1, 2017). Relative and kinship care
also helps to preserve children’s
cultural identity and relationship to
their community. This regulation would
allow children placed with a relative or
kin to remain connected to their
families, communities, and schools. For
youth in foster care, having a strong
cultural identity can lead to greater selfesteem, higher education levels,
improved coping abilities, and
decreased levels of loneliness and
depression (Child Welfare Information
Gateway. (2022). Kinship care and the
child welfare system. U.S. Department
of Health and Human Services,
Administration for Children and
Families, Children’s Bureau. https://
www.childwelfare.gov/pubs/f-kinshi/).
For example, in American Indian and
Alaskan Native communities, the
cultural knowledge children acquire
from grandparents, other adult family
members or close family friends who are
caring for them can be critical to
developing the survival skills and
resilience needed in the face of multiple
challenges and overcoming barriers to
positive outcomes. Culture and kinship
relationships are strong resources that
support their children in their care
(Generations United and National
Indian Child Welfare Association.
(2020). TOOLKIT—American Indian
and Alaska Native Grandfamilies:
Helping Children Thrive Through
Connection to Family and Cultural
Identity. www.gu.org and
www.nicwa.org). Further, research
indicates that children living with
relatives experience fewer behavioral
problems and higher placement stability
rates compared to children living with
non-relatives in foster care (Child
Welfare Information Gateway. (2022).
Kinship care and the child welfare
system. U.S. Department of Health and
Human Services, Administration for
Children and Families, Children’s
Bureau. https://www.childwelfare.gov/
pubs/f-kinshi/; Foster Family-based
Treatment Association, The Kinship
Treatment Foster Care Initiative Toolkit,
2015). However, restrictive licensing
standards and inadequate information
about standards places relatives at a
disadvantage and reduce the positive
effects associated with kinship care
(‘‘How can we prioritize kin in the home
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study and licensure process, and make
placement with relatives the norm?’’
Casey Family Programs, 2020).
ACF believes that title IV–E agencies
can develop different foster family home
licensing or approval standards for
relatives in a manner that does not
compromise child safety and well-being.
The Act requires that all foster family
home licensing standards be reasonably
in accord with recommended standards
of national organizations concerned
with these standards for foster family
homes related to admission policies,
safety, sanitation, protection of civil
rights and use of the reasonable and
prudent parenting standard (section
471(a)(10) of the Act). Further, the Act
specifies that a child is only eligible to
receive a title IV–E FCMP if placed in
a licensed or approved placement,
which includes federal requirements
that the foster parent fully meet the
requirements concerning criminal
background checks (section 471(a)(20)
of the Act). A child is not eligible for
FCMP if the criminal records check
reveals that the prospective foster or
adoptive parent has been convicted of a
felony related to child abuse or neglect,
spousal abuse, a crime against a child or
children (including child pornography),
or a crime involving violence, including
rape, sexual assault, or homicide. In
addition, a child is not eligible for
FCMP if the criminal record checks
reveal that within the last 5 years, the
prospective foster or adoptive parent
has been convicted of a felony involving
physical assault, battery, or a drugrelated offense (Section 471(a)(20)(A) of
the Act; 45 CFR 1356.30). This NPRM
does not propose to change those
important safety requirements for
relative or kinship caregivers. Therefore,
a title IV–E agency may choose to
develop standards for relative and
kinship foster family homes that meet
only the federal requirements outlined
in the Act. As previously discussed,
research shows that children placed in
foster care with relatives are just as safe,
or safer, when compared with children
placed with unrelated foster families
(Beltran and Redlich Epstein, Improving
Foster Care Licensing Standards around
the United States: Using Research
Findings to Effect Change, February
2013).
Finally, we propose to revise the
definition of ‘‘foster family home’’ by
removing ‘‘[T]he term may include
group homes, agency-operated boarding
homes or other facilities licensed or
approved for the purpose of providing
foster care by the State or Tribal agency
responsible for approval or licensing of
such facilities.’’ Public Law 115–123,
the Family First Prevention Services
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Act, amended section 472(c)(1)(A)(ii) of
the Act to limit the definition of a foster
family home to the ‘‘home of an
individual or family,’’ and to require
that the foster parent resides in the
home with the child. Title IV–E
agencies are required to comply with
these statutory amendments regardless
of the regulatory language, so this
change is merely a technical
amendment that aligns the definition
with the law and clarifies that these
entities are not homes of individuals
and therefore, not considered foster
family homes.
With these proposed revisions, the
definition would read, ‘‘ ‘Foster family
home’ means, for the purpose of title
IV–E eligibility, the home of an
individual or family licensed or
approved as meeting the standards
established by the licensing or approval
authority(ies), that provides 24-hour
out-of-home care for children. The
licensing authority must be a state
authority in the state in which the foster
family home is located, a tribal
authority with respect to a foster family
home on or near an Indian Reservation,
or a tribal authority of a tribal title IV–
E agency with respect to a foster family
home in the tribal title IV–E agency’s
service area. Agencies may establish
foster family home licensing or approval
standards for all relative or kinship
foster family homes that are different
from standards for non-relative foster
family homes. Anything less than full
licensure or approval is insufficient for
meeting title IV–E eligibility
requirements. Title IV–E agencies may,
however, claim title IV–E
reimbursement during the period of
time between the date a prospective
foster family home satisfies all
requirements for licensure or approval
and the date the actual license is issued,
not to exceed 60 days.’’
Section § 1356.21
The NPRM would also revise section
§ 1356.21(m) to require that title IV–E
agencies review the amount of foster
care maintenance payments to assure
that the agency provides a licensed or
approved relative and kinship foster
family home the same amount of foster
care maintenance payments that would
have been made if the child was placed
in a non-related foster family home.
This proposed revision codifies the
holding in Miller v. Youakim, 440 U.S.
125 (1979). In Miller, the Supreme Court
established that children placed with
relative foster homes that met approval
or licensing standards were full
participants in the IV–E program. The
Court stated that ‘‘neither the legislative
history nor the structure of the [Social
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Security] Act indicates that Congress
intended to differentiate among
neglected children based on their
relationship to their foster parents.’’ (Id.
at 138–139). Further, the definition of
‘‘foster care maintenance payments’’ for
IV–E purposes is based on the costs of
the services and supplies provided to
the foster child, not the relationship of
the child to the foster parent (42 U.S.C.
675(4)(A)). This proposed revision
means that a title IV–E agency must use
the same payment schedule(s) for
relative and non-relative licensed or
approved foster family homes. The
agency may not establish a separate
payment schedule for licensed or
approved relative and kinship foster
family homes. For example, a title IV–
E agency has a foster care maintenance
payment schedule of monthly payments
based on age and including basic
maintenance and difficulty-of-care
Levels 1, 2 & 3. The agency determines
that, if placed with a non-relative, the
child of a certain age in title IV–E foster
care requires level 3 care at $31.00 per
day. However, the child is placed in a
relative foster family home that is
licensed or approved using separate
licensing standards, established
consistent with this proposal. The
amount of the level 3 foster care
maintenance payment based on the
child’s age must also be $31.00 per day.
With this proposed revision, the
regulation would read, ‘‘(m) Review of
payments and licensing standards. In
meeting the requirements of section
471(a)(11) of the Act, the title IV–E
agency must review at reasonable,
specific, time-limited periods to be
established by the agency: (1) The
amount of the payments made for foster
care maintenance to assure their
continued appropriateness, and that the
amount made to a licensed or approved
relative or kinship foster family home is
the same as the amount that would have
been made if the child was placed in a
licensed or approved non- relative foster
family home; (2) The amount of the
payments made for adoption assistance
to assure their continued
appropriateness; and (3) The licensing
or approval standards for child care
institutions and foster family homes.’’
Equity Impact
This NPRM supports the
Administration’s priority of advancing
equity for those historically underserved
and adversely affected by persistent
poverty and inequality (U.S. President.
Executive Order. ‘‘Executive Order on
Advancing Racial Equity and Support
for Underserved Communities Through
the Federal Government, Executive
Order 13985 of January 20, 2021.’’). The
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current regulation prohibits a title IV–E
agency from uniformly adopting
separate foster family home licensing or
approval standards for relative or
kinship caregivers. This disadvantages
lower income prospective relative
caregivers, some of whom are
disqualified from providing care as a
result of not meeting income and other
standards established for licensing or
approving foster family homes.
This NPRM would especially provide
a support to low-income prospective
relative caregivers, many of whom are
families of color, are from underserved
rural areas, or are members of other
communities in which long-term
systemic factors such as poverty hamper
families from making intergenerational
progress. Ethnically and culturally
diverse populations are
disproportionately represented in
relative and kinship families. ‘‘While
Black or African American individuals
represent just 13% of the U.S.
population, they make up nearly a
quarter of all children in households
where a grandparent is responsible for
the needs of the child’’ (Advisory
Council to Support Grandparents
Raising Grandchildren with Assistance
from the HHS Administration for
Community Living. Supporting
Grandparents Raising Grandchildren
(SGRG) Act, Initial Report to Congress.
Washington, DC: Author, p. 4,
November 16, 2021.). ‘‘Similarly,
American Indian and Alaska Natives
make up only 1.3% of the U.S.
population, but their representation in
grandparent-led households where the
grandparent is providing for most of
their needs, is more than double that
rate (U.S. Census Bureau, 2019). The
available data on grandparents
responsible for grandchildren suggests
that underserved racial and ethnic
populations are disproportionately
taking responsibility for grandchildren.’’
(Advisory Council to Support
Grandparents Raising Grandchildren
with assistance from the HHS
Administration for Community Living.
[November 16, 2021]. Supporting
Grandparents Raising Grandchildren
(SGRG) Act, Initial Report to Congress.
Washington, DC: Author, p. 12).
Moreover, many individuals in these
communities face simultaneous,
multiple barriers when attempting to
provide care to a relative who has been
removed from their home.
Policies that expand access to FCMPs
can have an especially strong impact on
underserved groups. Encouraging and
removing barriers to kinship placement
also is consistent with cultural norms of
some underserved groups that
traditionally rely more heavily on kin
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and family in times of need. For
example:
• Children age 3 to 5 who are the
subject of a child maltreatment report in
rural areas and those in households
with incomes less than 50 percent of
federal poverty level were more likely to
be placed in informal kinship settings
than similarly situated children in
urban areas (Walsh, W.A. Informal
Kinship Care Most Common Out-ofHome Placement After an Investigation
of Child Maltreatment [Fact Sheet no.
24]. Durham, NH: University of New
Hampshire, Carsey Institute, 2013.).
• African American families rely on
extended family and other informal
systems of care not only because these
informal systems are cultural strengths,
but because African American children
historically were excluded from public
and private sector child welfare
programs and supports (U.S.
Government Accountability Office,
Child Welfare and Aging Programs: HHS
Could Enhance Support for
Grandparents and Other Relative
Caregivers (GAO–20–434), July 2020).
• Traditionally, grandparents and
other family members assume integral
roles in raising children within
American Indian/Alaska Native
communities. This type of extensive
familial support system helps parents to
pass on to their children the knowledge
of customs, culture, and language
essential to community survival and
well-being (Capacity Building Center for
Tribes. Engaging and Supporting Native
Grandfamilies. 2022. https://
tribalinformationexchange.org/files/
products/Grandfamilies
ResourceList2022.pdf; Lewis, Jordan &
Boyd, Keri & Allen, James & Rasmus,
Stacy & Henderson, Tammy. (2018).
‘‘We Raise our Grandchildren as our
Own:’’ Alaska Native Grandparents
Raising Grandchildren in Southwest
Alaska. Journal of Cross-Cultural
Gerontology. 33.10.1007/s10823–018–
9350–z.).
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IV. Regulatory Process Matters
Regulatory Planning and Review
Executive Order 12866 and Executive
Order 13563
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health, and safety
effects; distributive impacts; and
equity). Executive Order 13563 is
supplemental to, and reaffirms the
principles, structures, and definitions
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governing regulatory review as
established in Executive Order 12866,
emphasizing the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. Section 3(f)
of Executive Order 12866 defines ‘‘a
significant regulatory action’’ as an
action that is likely to result in a rule
that may (1) have an annual effect on
the economy of $100 million or more in
any 1 year, or adversely and materially
affecting a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, and tribal governments or
communities (also referred to as
‘‘economically significant’’); (2) create a
serious inconsistency or otherwise
interfering with an action taken or
planned by another agency; (3)
materially alter the budgetary impacts of
entitlement grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
Order. A regulatory impact analysis
must be prepared for rules determined
to be significant regulatory actions
within the scope of section 3(f)(1) of
Executive Order 12866, and all
significant regulatory actions are subject
to review by the Office of Management
and Budget (OMB).
ACF consulted OMB and determined
that this proposed rule meets the criteria
for a significant regulatory action under
Executive Order 12866 and subject to
OMB review. Based on ACF’s estimates
of the likely costs associated with this
proposal, OMB designated this
proposed rule as a significant regulatory
action within the scope of section 3(f)(1)
of Executive Order 12866.
The estimated cost and transfer
impacts of this regulatory proposal are
provided below (see the sections titled
‘‘Federal cost estimate with
implementation of this proposal in a
final rule’’ and ‘‘Estimated costs of this
proposal to title IV–E agencies’’). As
described in the Section-by-Section
above, children in foster care do best
when placed with relatives and kin and
family connections are critical to
healthy child development and a sense
of belonging. Relative and kinship care
also helps to preserve children’s
cultural identity and relationship to
their family, community and school,
which can help buffer depressive
symptoms. Children living with
relatives experience fewer behavioral
problems and higher placement stability
rates then children living with unrelated foster parents. Situating relatives
and kin to become a licensed or
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approved foster care placement is
important, in part, because it allows
families to receive financial support
through FCMPs (sections 472(b)(1) and
(c)(1) of the Act and section I.C. of
ACYF–CB–PI–10–11), and it meets one
component of eligibility for the title IV–
E Kinship Guardianship Assistance
Program, which can provide longer-term
financial support and benefits to a
family that provides permanency to a
child who cannot safely return home
(section 473(d)(3)(A)(i)(II) of the Act).
Relative and kinship placements also
support cultural norms of some
underserved groups that traditionally
rely more heavily on kin and family in
times of need. In addition, there is an
increasing shortage of qualified foster
parents, and research demonstrates that
when a parent(s) is not able to safely
care for their child, it is best for child
to be cared for by family who step
forward to provide the child(ren) with a
loving home.
Alternatives Considered: We
considered providing a federal
definition of relative and kinship, which
would allow title IV–E agencies to apply
relative standards to only those who
would meet the federal definition,
rather than a potentially broader state/
tribal definition of these terms. For
example, one federal definition could
allow only a subset of relatives to whom
the standards would apply, such as
those who meet the former Aid to
Families with Dependent Children
income standards. However, we
determined that the title IV–E agency
should continue to define relative and
kin because providing a federal
definition could interfere with the goal
of the proposal to provide FCMPs on
behalf of a child in foster care in need.
In addition, providing a federal
definition of relative and kinship would
be a burden on title IV–E agencies
because it would likely require many
states and Tribes to change their
definitions in policy regulations or
statutes. Without this NPRM, title IV–E
agencies must maintain the same
licensing or approval standards for
relative and non-related foster family
homes and may continue issuing nonsafety related waivers on a case-by-case
basis for relatives that do not meet the
agency’s foster family home standards.
Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA)
(see 5 U.S.C. 605(b) as amended by the
Small Business Regulatory Enforcement
Fairness Act) requires federal agencies
to determine, to the extent feasible, a
rule’s impact on small entities, explore
regulatory options for reducing any
significant impact on a substantial
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number of such entities, and explain
their regulatory approach. The term
‘‘small entities,’’ as defined in the RFA,
comprises small businesses, not-forprofit organizations that are
independently owned and operated and
are not dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000. HHS
considers a rule to have a significant
impact on a substantial number of small
entities if it has at least a 3 percent
impact on revenue on at least 5 percent
of small entities. However, the Secretary
certifies, under 5 U.S.C. 605(b), as
enacted by the RFA (Pub. L. 96–354),
that this rule would not result in a
significant impact on a substantial
number of small entities. This proposed
rule does not affect small entities
because it is applicable only to state and
tribal title IV–E agencies. Therefore, an
initial regulatory flexibility analysis is
not required for this notice.
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Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (UMRA) (Pub. L. 104–4) was
enacted to avoid imposing unfunded
federal mandates on state, local, and
tribal governments, or on the private
sector. Section 202 of UMRA requires
that agencies assess anticipated costs
and benefits before issuing any rule
whose mandates require spending in
any 1 year of $100 million in 1995
dollars, updated annually for inflation.
In 2022, that threshold is approximately
$165 million. This rule does not contain
mandates that would impose spending
costs on state, local, or tribal
governments in the aggregate, or on the
private sector, in excess of the
threshold.
Assessment of Federal Regulations and
Policies on Families
Section 654 of the Treasury and
General Government Appropriations
Act of 2000 requires federal agencies to
determine whether a policy or
regulation may negatively affect family
well-being. If the agency determines a
policy or regulation negatively affects
family well-being, then the agency must
prepare an impact assessment
addressing seven criteria specified in
the law. ACF believes it is not necessary
to prepare a family policymaking
assessment (see Pub. L. 105–277)
because the action it takes in this NPRM
would not have any impact on the
autonomy or integrity of the family as
an institution.
Executive Order 13132
Executive Order 13132 requires
federal agencies to consult with state
and local government officials if they
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develop regulatory policies with
federalism implications. Federalism is
rooted in the belief that issues that are
not national in scope or significance are
most appropriately addressed by the
level of government close to the people.
This rule would not have substantial
direct impact on the states, on the
relationship between the federal
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government because allowing
each title IV–E agency to adopt foster
family home licensing or approval
standards for relative foster family
homes is optional and not mandatory.
Therefore, in accordance with section 6
of Executive Order 13132, it is
determined that this action does not
have sufficient federalism implications
to warrant the preparation of a
federalism summary impact statement.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(Pub. L. 104–13) seeks to minimize
government-imposed burden from
information collections on the public. In
keeping with the notion that
government information is a valuable
asset, it also is intended to improve the
practical utility, quality, and clarity of
information collected, maintained, and
disclosed.
The Paperwork Reduction Act defines
‘‘information’’ as any statement or
estimate of fact or opinion, regardless of
form or format, whether numerical,
graphic, or narrative form, and whether
oral or maintained on paper, electronic,
or other media (5 CFR 1320.3(h)). This
includes requests for information to be
sent to the government, such as forms,
written reports and surveys,
recordkeeping requirements, and thirdparty or public disclosures (5 CFR
1320.3(c)). There is no burden to the
Federal government or to title IV–E
agencies as a result of this proposed
regulation. First, it is optional for a title
IV–E agency to develop separate
licensing standards for relative and
kinship foster family homes. If the
agency elects to do so, there are no new
reporting requirements. Second, title
IV–E agencies are already required by
section 471(a)(11) of the Act to conduct
periodic reviews of the rates and
standards related to foster care
maintenance payments. Therefore, the
regulatory proposal that during these
reviews, agencies ensure that the rate of
FCMP to relative and non-related foster
family homes is equal, does not impose
any new reporting requirements.
Finally, title IV–E agencies were
required to make changes consistent
with Public Law 115–123, the Family
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9417
First Prevention Services Act. Therefore,
the proposed technical change to bring
federal regulations up to date with title
IV–E of the Act does not impose any
new reporting requirements.
Annualized Cost to the Federal
Government
Total Projections to Implement Final
Rule. The estimate for this NPRM was
derived using fiscal year (FY) 2019 data
from the Adoption and Foster Care
Analysis and Reporting System
(AFCARS) on title IV–E relative foster
family home placements and FY 2019
claiming data from the Form CB–496
‘‘Title IV–E Programs Quarterly
Financial Report (Foster Care, Adoption
Assistance, Guardianship Assistance,
Prevention Services and Kinship
Navigator Programs).’’ We did not use
FY 2020 or 2021 data from AFCARS
because such data would likely reflect
anomalies due to the COVID19 public
health emergency period.
If this proposed regulatory action
becomes final, ACF estimates that there
would be annual increases in the
number of title IV–E relative foster
family home placements and annual
increases in federal costs for foster care
maintenance payments (FCMPs) and
administration. ACF estimates that the
proposed regulatory change would cost
the federal government $28,753,988 in
title IV–E FFP i.e., FCMPs and
administration, the first year after the
rule becomes final and $3.085 billion
over a total of 10 years.
Assumptions: ACF made several
assumptions when calculating the cost
of FCMPs and administrative costs.
• First, we anticipate that without
any changes to the regulation, the
annual caseload growth rate (i.e., the
increase in title IV–E relative and nonrelative foster family home placements)
would be 1 percent, and the annual title
IV–E claiming growth factor would be
two percent. We retain this same annual
two percent claiming growth factor in
estimating the FFP to implement the
final rule because relative and nonrelative foster family homes receive the
same amount of title IV–E foster care
maintenance payments.
• Second, if the NPRM becomes final,
we assume a varied implementation rate
of title IV–E relative and kinship foster
family home placements. The estimate
assumes a slow rate of change because
agencies may not immediately decide to
implement new or revised relative foster
family home licensing or approval
standards. In addition, states and tribes
vary on whether policy, regulation or
statutory change must precede such
changes.
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• Finally, the title IV–E participation
rate for relative foster family home
placements was 27.6 percent in FY
2019. Conversely, the title IV–E
participation rate for other foster care
placements was 47.7 percent in FY
2019. We assume that this percentage
would increase for relative foster family
home placements over time as a result
of the proposed regulation because it
allows different licensing or approval
standards for relative and non-relative
foster family home placements. We also
assume that the difference in the title
IV–E participation rate of relatives and
non-relatives is almost entirely due to
the use of the same licensing or
approval standard for both relative and
non-relative foster family home
placements. We anticipate incremental
changes in the IV–E participation rate
for relative and kinship foster family
home placements over a total of 10
years, and that by year ten, this rate
would increase to 41.7 percent.
Average title IV–E FCMP and
Administrative costs per child. To
determine the FY 2019 average FFP cost
per child, we divided the total number
of children in foster care in FY 2019
receiving title IV–E maintenance
payments (170,446) by the total FFP
claimed on the Form CB–496 for this
time period. This resulted in an average
title IV–E FCMP cost of $9,240 per
child; and an average title IV–E
administrative cost of $12,907 (This is
the baseline FFP). We used the annual
average per child costs to calculate the
FFP that would be claimed over a total
of 10 years with and without
implementation of the proposed rule.
We made an assumption that 15 percent
of the increased relative placement title
IV–E caseload in each year would have
already been subject to title IV–E
claiming for administrative cost
purposes (without the NPRM) based on
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current law that allows these costs for
the period specified in the law, up to 12
months, that an application for
licensure is pending (see section
472(i)(1)(A) of the Act).
Federal Cost Estimates Without
Implementation of the Proposed Rule
Line 1. Estimates of the number of
title IV–E relative foster family home
placements. As of September 30, 2019,
there were 36,953 title IV–E relative
foster family home placements.
Applying our assumptions, on line 1 on
the table below, we display the annual
increases in title IV–E relative
placements without implementation of
the proposed rule for 5 different years,
beginning with FY 2023 and ending
with 2032. For example, in FY 2023,
there would be 37,322 title IV–E relative
foster family home placements if the
regulation is not implemented: 36,953 +
(36,953 × .01) = 37,322.
Lines 2 through 5. Estimates of FFP
for title IV–E relative foster family home
placements. To determine increases in
the annual FCMP and administrative
costs of title IV–E relative foster family
home placements, we multiplied the
average annual federal cost per child
(lines 2 and 3) by the annual number of
title IV–E relative foster home
placements on line 1. On the table
below, line 4 displays the increased
FCMP costs and line 5 displays
increased administrative costs for 5
different years beginning with 2023 and
ending with 2032. The baseline FCMP
costs for 2019 is $9,240 × 36,953 =
$341,462,572. The baseline
administrative costs for 2019 is $12,907
× 36,953 = $476,934,437.
Federal Cost Estimate With
Implementation of This Proposal in a
Final Rule
Lines 6 and 7. Number of title IV–E
relative foster family home placements.
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On line 6 of the table below, we
estimate the annual increases in title
IV–E relative foster family home
placements if the proposed rule
becomes final. We used a caseload
growth rate of 5 percent in year 1, 15
percent in year 2, 25 percent in year 3,
45 percent in year 5. By year 10, this
implementation rate is expected to
reach 70 percent based on our
assumptions described earlier. On line 7
of the table below, we determined the
annual number of new title IV–E relative
foster family home placements as a
result of the regulation. To calculate the
annual number of new title IV–E relative
foster family home placements due to
implementation of the final rule, we
subtracted the projected caseload
without application of the final rule on
line 1 from the projected caseload of the
proposed rule on line 6. For example, in
2023 there would be 1,392 new title IV–
E relative foster family home
placements: 38,714¥37,323 = 1,392.
Lines 8 through 10. Annual federal
costs of title IV–E relative foster family
home placements. Lines 8 and 9 display
the annual increases in FCMPs and
administrative costs for the new title IV–
E relative foster family home
placements (on line 6) if the final rule
is implemented. To determine the
annual federal cost of the NPRM on
lines 8 and 9, we multiplied the annual
number of new title IV–E relative foster
family home placements on line 6 by
the average child costs for FCMPs and
administration on lines 2 and 3. This
information is displayed for 5 different
years beginning with 2023 and ending
with 2032. For example, on line 8, the
cost in 2023 for FCMPs is approximately
$13,117,787 (1,392 children × $9,425
average FCMP). Line 10 displays the
annual incremental federal costs of the
NPRM if it becomes a final rule.
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9419
Estimates without regulatory changes
2019
Baseline
1. Number of title IV–E relative placements @1% growth ...............................
2. Avg. title IV–E FCMP FFP claim per
child@2% claiming growth factor ..........
3. Avg. title IV–E Administrative cost FFP
claim per child@2% claiming growth
factor ......................................................
4. FCMP cost ............................................
5. Administrative cost ................................
2023
(Year 1)
2024
(Year 2)
2025
(Year 3)
2027
(Year 5)
2032
(Year 10)
Ten year
total cost
36,953
37,323
37,696
38,073
38,838
40,819
............................
$9,240
$9,425
$9,614
$9,806
$10,202
$11,264
............................
$12,907
$341,462,572
$476,934,437
$13,165
$351,774,691
$491,337,785
$13,428
$362,398,575
$506,176,589
$13,696
$373,343,289
$521,463,509
$14,250
$396,233,652
$553,435,395
$15,733
$459,790,346
$642,207,572
............................
$4,036,424,435
$5,637,835,507
Estimated FFP with proposed regulatory changes
2019
6. Number of title IV–E relative placement
@varied caseload growth rates .............
7. Total annual increase in title IV–E relative placements ....................................
8. Annual increase in FCMP costs ...........
9. Increase in administrative costs ...........
10. Total incremental increase in FFP ......
2023
(Year 1)
2024
(Year 2)
2025
(Year 3)
2027
(Year 5)
2032
(Year 10)
Ten year
total cost
36,953
38,714
41,849
45,042
51,609
61,680
............................
........................
........................
........................
........................
1,392
$13,117,787
$15,636,201
$28,753,988
4,153
$39,926,838
$50,233,323
$90,160,161
6,970
$68,344,565
$89,758,368
$158,102,933
12,771
$130,295,804
$175,938,591
$306,234,395
20,861
$234,976,401
$324,690,283
$559,666,684
............................
$1,304,789,018
$1,780,051,762
$3,084,840,780
Title IV–E agency estimates with proposed regulatory changes
2019
11. Maintenance Portion—Incremental
Non-Federal Share (Using FY 2019
Avg. FMAP rate of 56.61%) ..................
12. Administration Portion—Incremental
Non-Federal Share (50% FFP) .............
13. Total Incremental Increase in NonFederal Share ........................................
2023
2024
2025
2027
(Year 5)
2032
(Year 10)
Ten year
total cost
........................
$10,054,421
$30,602,817
$52,384,220
$99,868,132
$180,102,915
$1,000,084,711
........................
$15,636,201
$50,233,323
$89,758,368
$175,938,591
$324,960,283
$1,780,051,762
........................
$25,690,622
$80,836,140
$142,142,587
$275,806,723
$504,793,199
$2,780,136,473
Estimated costs of this proposal to
title IV–E agencies. Title IV–E agencies
may claim reimbursement for the
federal cost of FCMPs and
administrative costs, and the title IV–E
agency pays its share with state or tribal
funds. Line 11 displays the agency’s
estimated FCMP costs and line 12
displays the estimated agency costs for
administration. Line 13 displays the
total incremental increase in cost for the
state/tribal share. This information is
displayed for 5 different years beginning
with 2023 and ending with 2032. The
estimates provided are calculated using
the national average federal medical
assistance percentage (FMAP) rate of
56.61 percent for FY 2019 and an
administrative cost FFP rate of 50
percent. This proposal is optional;
therefore, agencies are not required to
incur any costs.
Accounting Statement
From a society-wide perspective,
many of the effects estimated above are
transfers. We seek comment on
estimation of the portion that represents
new resource use attributable to the
proposed rule. Preliminary, as shown in
the table below, the full amounts are
categorized as transfers—from either the
federal government or Title IV–E
agencies to Title IV–E participants.
Units
Primary estimate
(millions)
ddrumheller on DSK120RN23PROD with PROPOSALS
Category
Year dollars
Federal Budget Transfers (annualized) ...................................
$439
362
From/To ...................................................................................
From: Federal government
Other Transfers (annualized) ...................................................
395
326
From/To ...................................................................................
From: Title IV–E agencies
V. Tribal Consultation Statement
Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments, requires agencies to
consult with Indian tribes when
regulations have substantial direct
effects on one or more Indian tribes, on
VerDate Sep<11>2014
17:53 Feb 13, 2023
Jkt 259001
the relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes. This
NPRM does not propose any mandatory
action on Tribal governments or impose
any tribal burden or cost, and therefore
PO 00000
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Fmt 4702
Sfmt 4702
Discount rate
(%)
2019
2019
Period covered
(years)
7
3
10
10
7
3
10
10
To: Title IV–E participants
2019
2023
To: Title IV–E participants
does not have substantial direct effects
on Indian tribes. Rather it proposes to
provide tribal title IV–E agencies an
option for implementing the foster
family home licensing requirements for
the title IV–E foster care program.
Accordingly, a tribal title IV–E agency
can adopt separate licensing or approval
E:\FR\FM\14FEP1.SGM
14FEP1
9420
Federal Register / Vol. 88, No. 30 / Tuesday, February 14, 2023 / Proposed Rules
standards for relative or kinship foster
family homes, but is not required to do
so. We intend to notify tribal title IV–
E agency leadership about the
opportunity to provide comment on the
NPRM no later than the day of
publication. Further, shortly after
publication of the NPRM, we plan to
hold briefing sessions with tribal title
IV–E agencies and any other interested
tribe on the contents of the NPRM.
January Contreras, Assistant Secretary
of the Administration for Children and
Families, approved this document on
January 20, 2023.
List of Subjects
45 CFR Part 1355
Administrative costs, Adoption
Assistance, Child welfare, Fiscal
requirements (title IV–E), Grant
programs—social programs, Statewide
information systems, Adoption and
foster care, Child welfare, Grant
programs—social programs.
45 CFR Part 1356
Adoption and foster care, Child
welfare, Grant programs—social
programs.
Dated: February 8, 2023.
Xavier Becerra,
Secretary, Department of Health and Human
Services.
For the reasons set forth in the
preamble, ACF proposes to amend 45
CFR parts 1355 and 1356 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. In § 1355.20, amend paragraph (a)
by revising the definition of ‘‘Foster
family home’’ to read as follows:
■
ddrumheller on DSK120RN23PROD with PROPOSALS
Definitions.
(a) * * *
Foster family home means, for the
purpose of title IV–E eligibility, the
home of an individual or family
licensed or approved as meeting the
standards established by the licensing or
approval authority(ies), that provides
24-hour out-of-home care for children.
The licensing authority must be a state
authority in the state in which the foster
family home is located, a tribal
authority with respect to a foster family
home on or near an Indian Reservation,
or a tribal authority of a tribal title IV–
VerDate Sep<11>2014
17:53 Feb 13, 2023
Jkt 259001
DEPARTMENT OF DEFENSE
PART 1356—REQUIREMENTS
APPLICABLE TO TITLE IV–E
DoD published a proposed
rule on December 19, 2022, seeking
public input on a proposed revision to
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
implement the intellectual property
(e.g., data rights) portions of the Small
Business Administration’s Small
Business Innovation Research Program
and Small Business Technology
Transfer Program Policy Directive. The
deadline for submitting comments is
being extended to provide additional
time for interested parties to provide
inputs. In addition, DoD is hosting a
second public meeting to further obtain
views of experts and interested parties
in Government and the private sector
regarding this proposed revision of the
DFARS.
DATES:
Comment date: Comments on the
proposed rule should be submitted in
writing to the address shown below on
or before March 20, 2023, to be
considered in the formation of a final
rule.
Public meeting date: A virtual public
meeting will be held on March 2, 2023,
from 1 p.m. to 5 p.m., Eastern time. The
public meeting will end at the stated
time, or when the discussion ends,
whichever comes first.
Registration date: Registration to
attend the public meeting must be
received no later than close of business
on February 23, 2023. Information on
how to register for the public meeting
may be found under the SUPPLEMENTARY
INFORMATION section of this notice.
ADDRESSES:
Public Meeting: A virtual public
meeting will be held using Zoom video
conferencing software.
Submission of Comments: Submit
comments identified by DFARS Case
3. The authority citation for part 1356
continues to read as follows:
■
Authority: 42 U.S.C. 620 et seq., 42 U.S.C.
670 et seq.; 42 U.S.C. 1302.
(Catalog of Federal Domestic Assistance
Program Number 93.658, Foster Care
Maintenance; 93.659, Adoption Assistance;
93.645, Child Welfare Services—State
Grants).
§ 1355.20
E agency with respect to a foster family
home in the tribal title IV–E agency’s
service area. Agencies may establish one
set of foster family home licensing or
approval standards for all relative or
kinship foster family homes that are
different from the set of standards used
to license or approve all non-relative
foster family homes. Anything less than
full licensure or approval is insufficient
for meeting title IV–E eligibility
requirements. Title IV–E agencies may,
however, claim title IV–E
reimbursement during the period of
time between the date a prospective
foster family home satisfies all
requirements for licensure or approval
and the date the actual license is issued,
not to exceed 60 days.
*
*
*
*
*
4. Amend § 1356.21 by revising
paragraphs (m)(1) and (2), and adding
paragraph (m)(3) to read as follows:
■
§ 1356.21 Foster care maintenance
payments program implementation
requirements.
*
*
*
*
*
(m) * * *
(1) The amount of the payments made
for foster care maintenance to assure
their continued appropriateness, and
that the amount made to a licensed or
approved relative or kinship foster
family home is the same as the amount
that would have been made if the child
was placed in a licensed or approved
non-relative foster family home;
(2) The amount of the payments made
for adoption assistance to assure their
continued appropriateness; and
(3) The licensing or approval
standards for child care institutions and
foster family homes.
*
*
*
*
*
[FR Doc. 2023–03005 Filed 2–13–23; 8:45 am]
BILLING CODE 4184–73–P
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Defense Acquisition Regulations
System
48 CFR Parts 212, 227, and 252
[Docket DARS–2020–0033]
RIN 0750–AK84
Defense Federal Acquisition
Regulation Supplement: Small
Business Innovation Research
Program Data Rights (DFARS Case
2019–D043); Extension of Comment
Period; Public Meeting
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Proposed rule; extension of
comment period; public meeting.
AGENCY:
SUMMARY:
E:\FR\FM\14FEP1.SGM
14FEP1
]]>Agencies
[Federal Register Volume 88, Number 30 (Tuesday, February 14, 2023)]
[Proposed Rules]
[Pages 9411-9420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03005]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1355 and 1356
RIN 0970-AC91
Separate Licensing Standards for Relative or Kinship Foster
Family Homes
AGENCY: Children's Bureau (CB); Administration on Children, Youth and
Families (ACYF); Administration for Children and Families (ACF);
Department of Health and Human Services (HHS).
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: ACF is proposing to revise the definition of ``foster family
home'' to allow each title IV-E agency to adopt foster family home
licensing or approval standards for foster family homes of individuals
related to a child by blood, marriage, or adoption and other
individuals who have an emotionally significant relationship with the
child, including fictive kin, (referred herein as ``relative(s) and
kin(ship)'') that differ from non-relative foster family homes agency
standards. In this context, a ``non-relative'' foster family home means
a home of an unrelated individual who is not kin or fictive kin. This
notice of proposed rulemaking (NPRM) would allow a title IV-E agency to
claim title IV-E federal financial participation (FFP) for the cost of
foster care maintenance payments (FCMP) on behalf of an otherwise
eligible child who is placed in a relative or kinship licensed or
approved foster family home when the agency uses different licensing or
approval standards for relative or kinship foster family homes and non-
relative foster family homes. In addition, the NPRM would amend the
requirement that title IV-E agencies review the amount of FCMPs to also
assure that the agency provides a licensed or approved relative and
kinship foster family home the same amount of FCMP that would have been
made if the child was placed in a non-related foster family home.
DATES: In order to be considered, ACF must receive written comments on
this NPRM on or before April 17, 2023.
ADDRESSES: ACF encourages the public to submit comments electronically
to ensure they are received in a timely manner. Please be sure to
include identifying information on any correspondence. To download an
electronic version of the proposed rule, please go to https://www.regulations.gov/. You may submit comments, identified by docket
number, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include [docket number and/
or Regulatory Information Number (RIN) number] in subject line of the
message.
Instructions: All submissions received must include the agency name
and docket number or RIN for this rulemaking. All comments received
will be posted without change to www.regulations.gov, including any
personal information provided.
FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, Director, Policy
Division, Children's Bureau, (202) 401-5789 [email protected]
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority To Issue NPRM
II. Background
III. Section-by-Section Discussion of Proposed Regulatory Changes
IV. Regulatory Process Matters
V. Tribal Consultation Statement
I. Statutory Authority
This NPRM is published under the authority granted to the Secretary
of Health and Human Services (the Secretary) by section 1102 of the
Social Security Act (the Act), 42 U.S.C. 1302. Section 1102 of the Act
authorizes the Secretary to publish regulations, not inconsistent with
the Act, as may be necessary for the efficient administration of the
functions with which the Secretary is responsible under the Act.
II. Background
When parents are unable to safely care for their own children, it
is often grandparents, other relatives, or kin who step forward to
provide a loving home for those children, either temporarily or
permanently. All over the nation, there is a preference to prioritize
placing children entering foster care with relatives and kin over non-
relative foster families when appropriate (``How can we prioritize kin
in the home study and licensure process, and make placement with
relatives the norm?'' Casey Family Programs, 2020.). This preference
stems from the knowledge that it is generally best for children to be
with family and also from the increasing shortage of qualified foster
parents (Miller, Jennifer, ``Creating a Kin-First Culture,'' American
Bar Association, July 1, 2017). The Government Accountability Office
found ``in 2018, an estimated 2.7
[[Page 9412]]
million children lived with kin caregivers--grandparents, other
relatives, or close family friends--because their parents were unable
to care for them.'' (U.S. Government Accountability Office, Child
Welfare and Aging Programs: HHS Could Enhance Support for Grandparents
and Other Relative Caregivers (GAO-20-434), July 2020).
Title IV-E agencies have discretion to define ``relative'' and
``kin'' with regard to licensing standards. The definitions among title
IV-E agencies vary, and sometimes ``kin'' is used more broadly than
``relative''. Fictive kin often include people who are not related by
blood, marriage or adoption, but who have an emotionally significant
relationship with the child, and those who are treated ``like family.''
(American Bar Association, Legally Recognized Fictive Kin
Relationships: A Call for Action, March 1, 2022). For purpose of this
NPRM, we use the term ``relative(s) and kin(ship)'' to allow title IV-E
agencies to adopt one set of licensing or approval standards for
individuals related to a child by blood, marriage or adoption and other
individuals who have an emotionally significant relationship with the
child, including fictive kin, that is different from the licensing or
approval standards used for non-relative foster family homes. A child
is in foster care when a title IV-E agency has placement and care
responsibility for a child, removes the child from the parent's home,
and places the child in 24-hour substitute care (45 CFR 1355.20). A
child is in foster care in accordance with this definition regardless
of whether the placement is licensed or approved and payments are made
by the state or tribe for the care of the child (45 CFR 1355.20).
Placement and care responsibility means that a title IV-E agency is
legally accountable for the day-to-day care and protection of the
child, decides with whom the child in foster care will be placed, and
provides the child with federally mandated protections such as case
plans and court reviews (sections 471(a)(16) and 475(5) of the Act;
CWPM 8.3A.12 #4). We also use the terms ``licensing'' and ``approval''
interchangeably, depending on the state terminology (65 FR 4020 at
4032; CWPM 8.3A.8c #5). Each state and tribe operating a title IV-E
program must designate an authority responsible for establishing and
maintaining licensing or approval standards for foster family homes.
Encouraging and assisting relative and kin caregivers to become a
licensed or approved foster care placement is important, in part,
because it allows families to receive financial support through FCMPs
(sections 472(b)(1) and (c)(1) of the Act and section I of ACYF-CB-PI-
10-11). Licensing or approval is also one component of eligibility for
the title IV-E Kinship Guardianship Assistance Program, which can
provide longer-term financial support and benefits to a guardian that
provides permanency to a child who cannot safely return home (section
473(d)(3)(A)(i)(II) of the Act). The section-by-section discusses other
reasons why licensing or approving relative and kinship foster family
homes is important for children in foster care.
Although the Act includes provisions requiring each agency to give
priority consideration to relatives as foster care placements over a
non-related caregiver when determining an out-of-home placement for a
child, we understand that title IV-E agencies take varied approaches to
licensing and approving relative and kin foster family homes. Research
identifies that many agencies have policies that prioritize placements
with appropriate relatives and kin and provide them with an option to
become a licensed or approved foster parent so that they may receive
FCMPs (Beltran, Ana, and Redlich Epstein, Heidi. Improving Foster Care
Licensing Standards around the United States: Using Research Findings
to Effect Change. Washington, DC: Generations United and American Bar
Association, February 2013). Conversely, research also shows that some
agencies may not routinely pursue licensing and approving relatives or
kin as a possible licensed foster care placement for a child. For
example, relatives and kin who provide care for a child in foster care
may be denied a foster family home license or approval because they
have not met strict licensing standards, including non-safety standards
that the state may waive under current federal law. Thus, the relative
or kin caregiver is not eligible for FCMPs.
State licensing and approval standards for foster family homes were
developed before research demonstrated that relative and kinship care
is often the best option for children in foster care. As a result,
standards were created to ensure safety for children living with
someone they did not know, making many licensing standards irrelevant
for children living with a relative or kin (Miller, ``Creating a Kin-
First Culture,'' July 1, 2017). For example:
The Act requires only that licensing or approval standards
established by the state or tribe are reasonably in accordance with
recommended standards of national organizations for foster family homes
related to admission policies, safety, sanitation, protection of civil
rights, and use of the reasonable and prudent parenting standard
(section 471(a)(10)(A) of the Act), and that the caregiver fully meet
federal requirements under section 471(a)(20) of the Act (concerning
criminal background checks for all foster parents). However, in 2000,
ACF promulgated regulations that interpreted the Act to require that
each state establish and apply its licensing or approval standards to
all relative and non-relative foster family homes equally (45 CFR
1355.20). A title IV-E agency may waive non-safety-related licensing or
approval standards for relative foster family homes on a case-by-case
basis (section 471(a)(10)(D) of the Act). In 2020, ACF reported that 42
states, the District of Columbia, Puerto Rico, the Virgin Islands, and
3 tribes reported using waivers for non-safety licensing standards for
relative foster family homes. Examples of non-safety waivers include
waiving requirements for the home itself (the physical dimensions of
home, room size requirements, the size and location of bedrooms, well
water testing, proximity of the relative foster care provider's home to
the child's parents), financial standards of the kinship caregiver,
pre-service or training standards, and the age and marital status of
the caregiver (ACYF-CB-IM-20-08). However, the Act does not allow a
title IV-E agency to establish a policy or procedure that provides a
blanket waiver of the standards for licensing or approving relative
foster family homes (section 471(a)(10)(D) of the Act). Subsequent
research found that, partially as a result of the 2000 rule, more than
half of states changed their licensing standards. Some states
implemented stricter licensing standards for relatives than they had
previously. Many states that had standards specific to licensing
relatives and kin repealed those standards in their entirety (Beltran
and Redlich Epstein, Improving Foster Care Licensing Standards around
the United States: Using Research Findings to Effect Change, February
2013).
State licensing or approval standards developed for un-related
foster parents also may be unnecessary for relative or kin foster
parents. For example, many states require the same time-consuming and
intensive foster parent training classes for relatives and kin as they
do for non-relatives. However, relative caregivers may require a
different level or type of foster parent training to take care of their
kin, particularly when they already know the child for whom they are
going to provide care. Non-relative
[[Page 9413]]
foster parents may need training about how to integrate a child into a
home with which the child is unfamiliar, or how to determine the
child's interests and skills. Similarly, in contrast with non-relative
foster parents, who prepare for the arrival of children in foster care
over months and years, relatives often receive a request to care for a
child in emergency situations. In addition, relatives become licensed
to care for a child who is a relative, not because they want to be a
foster parent to children in foster care. Therefore, relative licensing
standards that allow for training that is condensed and more relevant
to relative and kinship families along with the necessary essential
agency support for foster parents could pave the way to remove barriers
to licensing relatives (Miller, ``Creating a Kin-First Culture,'' July
1, 2017). Several examples of condensed training may be found on pages
5 and 6 of ACYF-CB-IM-20-08.
Title IV-E of the Act includes provisions requiring each agency to
identify relatives of a child placed in foster care and to give
priority consideration to relatives as foster care placements.
Specifically, a title IV-E agency shall consider giving preference to
an adult relative over a non-related caregiver when determining an out-
of-home placement for a child, provided that the relative caregiver
meets all relevant state or tribal child protection standards (section
471(a)(19) of the Act). Also, the Act requires that within 30 days
after the removal of a child from their home, the title IV-E agency
must exercise due diligence to identify and provide notice to certain
relatives that the child has been or is being removed from the home,
explain the options for relatives to participate in the care and
placement of the child, describe how to become a foster family home,
describe the additional services and supports that are available to the
relative, as well as how a relative guardian of the child may
participate in the title IV-E Kinship Guardianship Assistance Program
if the title IV-E agency elected to operate the optional program
(section 471(a)(29) of the Act).
This NPRM would allow a title IV-E agency to adopt one set of
licensing or approval standards for all relative or kinship foster
family homes that is different from the licensing or approval standards
used for non-relative foster family homes. ACF encourages title IV-E
agencies to adopt licensing or approval standards for all relative or
kinship foster family homes that place as few burdens on such families
as possible, consistent with ensuring the safety and wellbeing of
children in foster care. Specifically, ACF encourages title IV-E
agencies to strongly consider developing standards for relative and
kinship foster family homes that meet only the requirements in the Act
described earlier (i.e., section 471(a)(10)(A) and (a)(20)), and not
additional standards the agency requires non-relative foster family
homes to meet. This eliminates the need for agencies to issue non-
safety related waivers to relatives on a case-by-case basis which can
delay the licensure process.
Finally, title IV-E of the Act and regulations require title IV-E
agencies to provide a periodic review of the standards referred to in
the preceding paragraph and amounts paid as foster care maintenance
payments and adoption assistance to assure their continuing
appropriateness (section 471(a)(11) of the Act; 45 CFR 1356.21(m)). The
NPRM would also revise this requirement to assure that the agency
provides a licensed or approved relative and kinship foster family home
the same amount of foster care maintenance payments that would have
been made if the child was placed in a non-related foster family home.
III. Section-by-Section Discussion of Proposed Regulatory Changes
Section Sec. 1355.20
ACF proposes to revise the definition of ``foster family home'' by
removing ``Foster family homes that are approved must be held to the
same standards as foster family homes that are licensed[.]'' and
replacing it with ``Agencies may establish foster family home licensing
or approval standards for all relative or kinship foster family homes
that are different from standards for non-relative foster family
homes.'' This would allow a title IV-E agency to establish a set of
foster family home licensing or approval standards that apply to all
relative or kinship foster family homes, and that are different from
non-relative foster family homes. An agency may also designate
different names for the different type of standards. For example, an
agency may designate the term ``approval'' to relative foster family
home standards for relatives, and ``licensing'' to non-relative foster
family homes. However, all standards and foster family homes must meet
the requirements under title IV-E of the Act.
As a result of this NPRM, a title IV-E agency would be able to
remove a possible barrier to claiming title IV-E FCMP on behalf of an
otherwise eligible child who is placed in a licensed or approved
relative or kinship foster family home. For example, the agency could
require that relative and kinship families only meet the licensing
requirements in the Act stated earlier, and not additional standards
the agency requires non-relative foster family homes to meet. Or, the
agency could implement state or tribal licensing standards for all
relative or kinship foster family homes to extend age limits for
relative or kinship foster care providers; allow relative children to
share sleeping spaces; disregard certain income, transportation,
literacy, language, and education requirements; and remove
disqualifications for non-child-related past crimes such as issuing bad
checks (Beltran and Redlich Epstein, Improving Foster Care Licensing
Standards around the United States: Using Research Findings to Effect
Change, February 2013; ; ``How can we prioritize kin in the home study
and licensure process, and make placement with relatives the norm?''
Casey Family Programs, 2020.). A title IV-E agency has the discretion
to define who is a relative or kinship provider in reference to this
regulatory change.
This NPRM proposes to allow title IV-E agencies to establish a set
of foster family home licensing or approval standards that apply to all
relative or kinship foster family homes, for several reasons. First,
this proposed change is consistent with long-standing recommendations
of stakeholders and experts in child welfare to license or approve more
relative and kinship foster family homes to significantly increase the
services and financial resources available to relative and kinship
caregivers., ACF has heard from stakeholders and discussed their
recommendations. Second, placing children in licensed or approved
relative foster family homes has multiple benefits to relatives and
children. Third, the proposed change allows title IV-E agencies more
flexibility without compromising child safety and well-being.
The current regulation requires the same licensing or approval
standards for all foster family homes. This can lead to placing
children with unlicensed relative foster family caregivers because some
relatives are not able to meet the agency's licensing or approval
standards. (Children's Defense Fund. Recommendations to Ensure
Children's Well-being through Support of Kinship Caregivers).
Stakeholders in the child welfare community have long advocated for a
change to federal regulations that would remove common licensing
barriers for relatives and kin, and allow foster family home licensing
or approval standards that reflect the unique needs and circumstances
of relative and
[[Page 9414]]
kinship caregivers (``How can we prioritize kin in the home study and
licensure process, and make placement with relatives the norm?'' Casey
Family Programs, 2020). Allowing more relatives and kin to become
licensed or approved as foster parents would significantly increase the
services and financial resources available to kin caregivers. (Foster
Family-based Treatment Association. The Kinship Treatment Foster Care
Initiative Toolkit. Hackensack, NJ: Foster Family-Based Treatment
Association, 2015, Page 14). Most children in nonparental care lived
with grandparents (63%), others lived with foster parents (15%), some
of whom were related, or with other relatives and nonrelatives such as
aunts, godparents, or friends (22%) (Radel, Bramlett, Chow, Waters,
2016). Many relatives who care for their kin are older, more likely to
be single, more likely to be African American, more likely to live in
poverty, and more likely to be less well educated (Bramlett, Radel,
Chow, 2017) (U.S. Government Accountability Office, Child Welfare and
Aging Programs: HHS Could Enhance Support for Grandparents and Other
Relative Caregivers (GAO-20-434), July 2020);). When children are
placed with relative caregivers, it is most often in emergency
situations which may result in unanticipated expenses. Many relatives,
especially those on a fixed income cannot financially afford to care
for their kin in the child welfare system unless they receive support.
Relatives who do not meet licensing standards are not eligible for
title IV-E FCMP and instead rely on financial assistance from Temporary
Assistance for Needy Families (TANF). TANF typically provides less than
half of the monthly FCMP. Lower foster care payments for kinship care
providers negatively affects the number of relatives that can care for
children (``How can we prioritize kin in the home study and licensure
process, and make placement with relatives the norm?'' Casey Family
Programs, 2020). Thus, relatives are often in greater need of financial
support; providing care for a child who has been removed from home
places financial strains on the relatives providing that care. This
NPRM can help low-income families who are adversely affected by poverty
and struggling to raise their kin by providing financial assistance to
maintain the child in the relative's home until the child can be
reunified.
Second, allowing a title IV-E agency to establish different foster
family home licensing or approval standards for all relative or kinship
foster family homes so that more children can be placed with relatives
and kin has multiple benefits to relatives and to children. Research
confirms that children in foster care often do best when placed with
relatives and kin and that family connections are critical to healthy
child development and a sense of belonging (Miller, ``Creating a Kin-
First Culture,'' July 1, 2017). Relative and kinship care also helps to
preserve children's cultural identity and relationship to their
community. This regulation would allow children placed with a relative
or kin to remain connected to their families, communities, and schools.
For youth in foster care, having a strong cultural identity can lead to
greater self-esteem, higher education levels, improved coping
abilities, and decreased levels of loneliness and depression (Child
Welfare Information Gateway. (2022). Kinship care and the child welfare
system. U.S. Department of Health and Human Services, Administration
for Children and Families, Children's Bureau. https://www.childwelfare.gov/pubs/f-kinshi/). For example, in American Indian
and Alaskan Native communities, the cultural knowledge children acquire
from grandparents, other adult family members or close family friends
who are caring for them can be critical to developing the survival
skills and resilience needed in the face of multiple challenges and
overcoming barriers to positive outcomes. Culture and kinship
relationships are strong resources that support their children in their
care (Generations United and National Indian Child Welfare Association.
(2020). TOOLKIT--American Indian and Alaska Native Grandfamilies:
Helping Children Thrive Through Connection to Family and Cultural
Identity. www.gu.org and www.nicwa.org). Further, research indicates
that children living with relatives experience fewer behavioral
problems and higher placement stability rates compared to children
living with non-relatives in foster care (Child Welfare Information
Gateway. (2022). Kinship care and the child welfare system. U.S.
Department of Health and Human Services, Administration for Children
and Families, Children's Bureau. https://www.childwelfare.gov/pubs/f-kinshi/; Foster Family-based Treatment Association, The Kinship
Treatment Foster Care Initiative Toolkit, 2015). However, restrictive
licensing standards and inadequate information about standards places
relatives at a disadvantage and reduce the positive effects associated
with kinship care (``How can we prioritize kin in the home study and
licensure process, and make placement with relatives the norm?'' Casey
Family Programs, 2020).
ACF believes that title IV-E agencies can develop different foster
family home licensing or approval standards for relatives in a manner
that does not compromise child safety and well-being. The Act requires
that all foster family home licensing standards be reasonably in accord
with recommended standards of national organizations concerned with
these standards for foster family homes related to admission policies,
safety, sanitation, protection of civil rights and use of the
reasonable and prudent parenting standard (section 471(a)(10) of the
Act). Further, the Act specifies that a child is only eligible to
receive a title IV-E FCMP if placed in a licensed or approved
placement, which includes federal requirements that the foster parent
fully meet the requirements concerning criminal background checks
(section 471(a)(20) of the Act). A child is not eligible for FCMP if
the criminal records check reveals that the prospective foster or
adoptive parent has been convicted of a felony related to child abuse
or neglect, spousal abuse, a crime against a child or children
(including child pornography), or a crime involving violence, including
rape, sexual assault, or homicide. In addition, a child is not eligible
for FCMP if the criminal record checks reveal that within the last 5
years, the prospective foster or adoptive parent has been convicted of
a felony involving physical assault, battery, or a drug-related offense
(Section 471(a)(20)(A) of the Act; 45 CFR 1356.30). This NPRM does not
propose to change those important safety requirements for relative or
kinship caregivers. Therefore, a title IV-E agency may choose to
develop standards for relative and kinship foster family homes that
meet only the federal requirements outlined in the Act. As previously
discussed, research shows that children placed in foster care with
relatives are just as safe, or safer, when compared with children
placed with unrelated foster families (Beltran and Redlich Epstein,
Improving Foster Care Licensing Standards around the United States:
Using Research Findings to Effect Change, February 2013).
Finally, we propose to revise the definition of ``foster family
home'' by removing ``[T]he term may include group homes, agency-
operated boarding homes or other facilities licensed or approved for
the purpose of providing foster care by the State or Tribal agency
responsible for approval or licensing of such facilities.'' Public Law
115-123, the Family First Prevention Services
[[Page 9415]]
Act, amended section 472(c)(1)(A)(ii) of the Act to limit the
definition of a foster family home to the ``home of an individual or
family,'' and to require that the foster parent resides in the home
with the child. Title IV-E agencies are required to comply with these
statutory amendments regardless of the regulatory language, so this
change is merely a technical amendment that aligns the definition with
the law and clarifies that these entities are not homes of individuals
and therefore, not considered foster family homes.
With these proposed revisions, the definition would read, ``
`Foster family home' means, for the purpose of title IV-E eligibility,
the home of an individual or family licensed or approved as meeting the
standards established by the licensing or approval authority(ies), that
provides 24-hour out-of-home care for children. The licensing authority
must be a state authority in the state in which the foster family home
is located, a tribal authority with respect to a foster family home on
or near an Indian Reservation, or a tribal authority of a tribal title
IV-E agency with respect to a foster family home in the tribal title
IV-E agency's service area. Agencies may establish foster family home
licensing or approval standards for all relative or kinship foster
family homes that are different from standards for non-relative foster
family homes. Anything less than full licensure or approval is
insufficient for meeting title IV-E eligibility requirements. Title IV-
E agencies may, however, claim title IV-E reimbursement during the
period of time between the date a prospective foster family home
satisfies all requirements for licensure or approval and the date the
actual license is issued, not to exceed 60 days.''
Section Sec. 1356.21
The NPRM would also revise section Sec. 1356.21(m) to require that
title IV-E agencies review the amount of foster care maintenance
payments to assure that the agency provides a licensed or approved
relative and kinship foster family home the same amount of foster care
maintenance payments that would have been made if the child was placed
in a non-related foster family home. This proposed revision codifies
the holding in Miller v. Youakim, 440 U.S. 125 (1979). In Miller, the
Supreme Court established that children placed with relative foster
homes that met approval or licensing standards were full participants
in the IV-E program. The Court stated that ``neither the legislative
history nor the structure of the [Social Security] Act indicates that
Congress intended to differentiate among neglected children based on
their relationship to their foster parents.'' (Id. at 138-139).
Further, the definition of ``foster care maintenance payments'' for IV-
E purposes is based on the costs of the services and supplies provided
to the foster child, not the relationship of the child to the foster
parent (42 U.S.C. 675(4)(A)). This proposed revision means that a title
IV-E agency must use the same payment schedule(s) for relative and non-
relative licensed or approved foster family homes. The agency may not
establish a separate payment schedule for licensed or approved relative
and kinship foster family homes. For example, a title IV-E agency has a
foster care maintenance payment schedule of monthly payments based on
age and including basic maintenance and difficulty-of-care Levels 1, 2
& 3. The agency determines that, if placed with a non-relative, the
child of a certain age in title IV-E foster care requires level 3 care
at $31.00 per day. However, the child is placed in a relative foster
family home that is licensed or approved using separate licensing
standards, established consistent with this proposal. The amount of the
level 3 foster care maintenance payment based on the child's age must
also be $31.00 per day.
With this proposed revision, the regulation would read, ``(m)
Review of payments and licensing standards. In meeting the requirements
of section 471(a)(11) of the Act, the title IV-E agency must review at
reasonable, specific, time-limited periods to be established by the
agency: (1) The amount of the payments made for foster care maintenance
to assure their continued appropriateness, and that the amount made to
a licensed or approved relative or kinship foster family home is the
same as the amount that would have been made if the child was placed in
a licensed or approved non- relative foster family home; (2) The amount
of the payments made for adoption assistance to assure their continued
appropriateness; and (3) The licensing or approval standards for child
care institutions and foster family homes.''
Equity Impact
This NPRM supports the Administration's priority of advancing
equity for those historically underserved and adversely affected by
persistent poverty and inequality (U.S. President. Executive Order.
``Executive Order on Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government, Executive Order
13985 of January 20, 2021.''). The current regulation prohibits a title
IV-E agency from uniformly adopting separate foster family home
licensing or approval standards for relative or kinship caregivers.
This disadvantages lower income prospective relative caregivers, some
of whom are disqualified from providing care as a result of not meeting
income and other standards established for licensing or approving
foster family homes.
This NPRM would especially provide a support to low-income
prospective relative caregivers, many of whom are families of color,
are from underserved rural areas, or are members of other communities
in which long-term systemic factors such as poverty hamper families
from making intergenerational progress. Ethnically and culturally
diverse populations are disproportionately represented in relative and
kinship families. ``While Black or African American individuals
represent just 13% of the U.S. population, they make up nearly a
quarter of all children in households where a grandparent is
responsible for the needs of the child'' (Advisory Council to Support
Grandparents Raising Grandchildren with Assistance from the HHS
Administration for Community Living. Supporting Grandparents Raising
Grandchildren (SGRG) Act, Initial Report to Congress. Washington, DC:
Author, p. 4, November 16, 2021.). ``Similarly, American Indian and
Alaska Natives make up only 1.3% of the U.S. population, but their
representation in grandparent-led households where the grandparent is
providing for most of their needs, is more than double that rate (U.S.
Census Bureau, 2019). The available data on grandparents responsible
for grandchildren suggests that underserved racial and ethnic
populations are disproportionately taking responsibility for
grandchildren.'' (Advisory Council to Support Grandparents Raising
Grandchildren with assistance from the HHS Administration for Community
Living. [November 16, 2021]. Supporting Grandparents Raising
Grandchildren (SGRG) Act, Initial Report to Congress. Washington, DC:
Author, p. 12). Moreover, many individuals in these communities face
simultaneous, multiple barriers when attempting to provide care to a
relative who has been removed from their home.
Policies that expand access to FCMPs can have an especially strong
impact on underserved groups. Encouraging and removing barriers to
kinship placement also is consistent with cultural norms of some
underserved groups that traditionally rely more heavily on kin
[[Page 9416]]
and family in times of need. For example:
Children age 3 to 5 who are the subject of a child
maltreatment report in rural areas and those in households with incomes
less than 50 percent of federal poverty level were more likely to be
placed in informal kinship settings than similarly situated children in
urban areas (Walsh, W.A. Informal Kinship Care Most Common Out-of-Home
Placement After an Investigation of Child Maltreatment [Fact Sheet no.
24]. Durham, NH: University of New Hampshire, Carsey Institute, 2013.).
African American families rely on extended family and
other informal systems of care not only because these informal systems
are cultural strengths, but because African American children
historically were excluded from public and private sector child welfare
programs and supports (U.S. Government Accountability Office, Child
Welfare and Aging Programs: HHS Could Enhance Support for Grandparents
and Other Relative Caregivers (GAO-20-434), July 2020).
Traditionally, grandparents and other family members
assume integral roles in raising children within American Indian/Alaska
Native communities. This type of extensive familial support system
helps parents to pass on to their children the knowledge of customs,
culture, and language essential to community survival and well-being
(Capacity Building Center for Tribes. Engaging and Supporting Native
Grandfamilies. 2022. https://tribalinformationexchange.org/files/products/GrandfamiliesResourceList2022.pdf; Lewis, Jordan & Boyd, Keri
& Allen, James & Rasmus, Stacy & Henderson, Tammy. (2018). ``We Raise
our Grandchildren as our Own:'' Alaska Native Grandparents Raising
Grandchildren in Southwest Alaska. Journal of Cross-Cultural
Gerontology. 33.10.1007/s10823-018-9350-z.).
IV. Regulatory Process Matters
Regulatory Planning and Review Executive Order 12866 and Executive
Order 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects; distributive impacts; and equity).
Executive Order 13563 is supplemental to, and reaffirms the principles,
structures, and definitions governing regulatory review as established
in Executive Order 12866, emphasizing the importance of quantifying
both costs and benefits, of reducing costs, of harmonizing rules, and
of promoting flexibility. Section 3(f) of Executive Order 12866 defines
``a significant regulatory action'' as an action that is likely to
result in a rule that may (1) have an annual effect on the economy of
$100 million or more in any 1 year, or adversely and materially
affecting a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, and tribal
governments or communities (also referred to as ``economically
significant''); (2) create a serious inconsistency or otherwise
interfering with an action taken or planned by another agency; (3)
materially alter the budgetary impacts of entitlement grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order. A regulatory impact analysis must be prepared for
rules determined to be significant regulatory actions within the scope
of section 3(f)(1) of Executive Order 12866, and all significant
regulatory actions are subject to review by the Office of Management
and Budget (OMB).
ACF consulted OMB and determined that this proposed rule meets the
criteria for a significant regulatory action under Executive Order
12866 and subject to OMB review. Based on ACF's estimates of the likely
costs associated with this proposal, OMB designated this proposed rule
as a significant regulatory action within the scope of section 3(f)(1)
of Executive Order 12866.
The estimated cost and transfer impacts of this regulatory proposal
are provided below (see the sections titled ``Federal cost estimate
with implementation of this proposal in a final rule'' and ``Estimated
costs of this proposal to title IV-E agencies''). As described in the
Section-by-Section above, children in foster care do best when placed
with relatives and kin and family connections are critical to healthy
child development and a sense of belonging. Relative and kinship care
also helps to preserve children's cultural identity and relationship to
their family, community and school, which can help buffer depressive
symptoms. Children living with relatives experience fewer behavioral
problems and higher placement stability rates then children living with
un-related foster parents. Situating relatives and kin to become a
licensed or approved foster care placement is important, in part,
because it allows families to receive financial support through FCMPs
(sections 472(b)(1) and (c)(1) of the Act and section I.C. of ACYF-CB-
PI-10-11), and it meets one component of eligibility for the title IV-E
Kinship Guardianship Assistance Program, which can provide longer-term
financial support and benefits to a family that provides permanency to
a child who cannot safely return home (section 473(d)(3)(A)(i)(II) of
the Act). Relative and kinship placements also support cultural norms
of some underserved groups that traditionally rely more heavily on kin
and family in times of need. In addition, there is an increasing
shortage of qualified foster parents, and research demonstrates that
when a parent(s) is not able to safely care for their child, it is best
for child to be cared for by family who step forward to provide the
child(ren) with a loving home.
Alternatives Considered: We considered providing a federal
definition of relative and kinship, which would allow title IV-E
agencies to apply relative standards to only those who would meet the
federal definition, rather than a potentially broader state/tribal
definition of these terms. For example, one federal definition could
allow only a subset of relatives to whom the standards would apply,
such as those who meet the former Aid to Families with Dependent
Children income standards. However, we determined that the title IV-E
agency should continue to define relative and kin because providing a
federal definition could interfere with the goal of the proposal to
provide FCMPs on behalf of a child in foster care in need. In addition,
providing a federal definition of relative and kinship would be a
burden on title IV-E agencies because it would likely require many
states and Tribes to change their definitions in policy regulations or
statutes. Without this NPRM, title IV-E agencies must maintain the same
licensing or approval standards for relative and non-related foster
family homes and may continue issuing non-safety related waivers on a
case-by-case basis for relatives that do not meet the agency's foster
family home standards.
Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA) (see 5 U.S.C. 605(b) as
amended by the Small Business Regulatory Enforcement Fairness Act)
requires federal agencies to determine, to the extent feasible, a
rule's impact on small entities, explore regulatory options for
reducing any significant impact on a substantial
[[Page 9417]]
number of such entities, and explain their regulatory approach. The
term ``small entities,'' as defined in the RFA, comprises small
businesses, not-for-profit organizations that are independently owned
and operated and are not dominant in their fields, and governmental
jurisdictions with populations of less than 50,000. HHS considers a
rule to have a significant impact on a substantial number of small
entities if it has at least a 3 percent impact on revenue on at least 5
percent of small entities. However, the Secretary certifies, under 5
U.S.C. 605(b), as enacted by the RFA (Pub. L. 96-354), that this rule
would not result in a significant impact on a substantial number of
small entities. This proposed rule does not affect small entities
because it is applicable only to state and tribal title IV-E agencies.
Therefore, an initial regulatory flexibility analysis is not required
for this notice.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) was
enacted to avoid imposing unfunded federal mandates on state, local,
and tribal governments, or on the private sector. Section 202 of UMRA
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. In 2022, that
threshold is approximately $165 million. This rule does not contain
mandates that would impose spending costs on state, local, or tribal
governments in the aggregate, or on the private sector, in excess of
the threshold.
Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 2000 requires federal agencies to determine whether a policy or
regulation may negatively affect family well-being. If the agency
determines a policy or regulation negatively affects family well-being,
then the agency must prepare an impact assessment addressing seven
criteria specified in the law. ACF believes it is not necessary to
prepare a family policymaking assessment (see Pub. L. 105-277) because
the action it takes in this NPRM would not have any impact on the
autonomy or integrity of the family as an institution.
Executive Order 13132
Executive Order 13132 requires federal agencies to consult with
state and local government officials if they develop regulatory
policies with federalism implications. Federalism is rooted in the
belief that issues that are not national in scope or significance are
most appropriately addressed by the level of government close to the
people. This rule would not have substantial direct impact on the
states, on the relationship between the federal government and the
states, or on the distribution of power and responsibilities among the
various levels of government because allowing each title IV-E agency to
adopt foster family home licensing or approval standards for relative
foster family homes is optional and not mandatory. Therefore, in
accordance with section 6 of Executive Order 13132, it is determined
that this action does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (Pub. L. 104-13) seeks to
minimize government-imposed burden from information collections on the
public. In keeping with the notion that government information is a
valuable asset, it also is intended to improve the practical utility,
quality, and clarity of information collected, maintained, and
disclosed.
The Paperwork Reduction Act defines ``information'' as any
statement or estimate of fact or opinion, regardless of form or format,
whether numerical, graphic, or narrative form, and whether oral or
maintained on paper, electronic, or other media (5 CFR 1320.3(h)). This
includes requests for information to be sent to the government, such as
forms, written reports and surveys, recordkeeping requirements, and
third-party or public disclosures (5 CFR 1320.3(c)). There is no burden
to the Federal government or to title IV-E agencies as a result of this
proposed regulation. First, it is optional for a title IV-E agency to
develop separate licensing standards for relative and kinship foster
family homes. If the agency elects to do so, there are no new reporting
requirements. Second, title IV-E agencies are already required by
section 471(a)(11) of the Act to conduct periodic reviews of the rates
and standards related to foster care maintenance payments. Therefore,
the regulatory proposal that during these reviews, agencies ensure that
the rate of FCMP to relative and non-related foster family homes is
equal, does not impose any new reporting requirements. Finally, title
IV-E agencies were required to make changes consistent with Public Law
115-123, the Family First Prevention Services Act. Therefore, the
proposed technical change to bring federal regulations up to date with
title IV-E of the Act does not impose any new reporting requirements.
Annualized Cost to the Federal Government
Total Projections to Implement Final Rule. The estimate for this
NPRM was derived using fiscal year (FY) 2019 data from the Adoption and
Foster Care Analysis and Reporting System (AFCARS) on title IV-E
relative foster family home placements and FY 2019 claiming data from
the Form CB-496 ``Title IV-E Programs Quarterly Financial Report
(Foster Care, Adoption Assistance, Guardianship Assistance, Prevention
Services and Kinship Navigator Programs).'' We did not use FY 2020 or
2021 data from AFCARS because such data would likely reflect anomalies
due to the COVID19 public health emergency period.
If this proposed regulatory action becomes final, ACF estimates
that there would be annual increases in the number of title IV-E
relative foster family home placements and annual increases in federal
costs for foster care maintenance payments (FCMPs) and administration.
ACF estimates that the proposed regulatory change would cost the
federal government $28,753,988 in title IV-E FFP i.e., FCMPs and
administration, the first year after the rule becomes final and $3.085
billion over a total of 10 years.
Assumptions: ACF made several assumptions when calculating the cost
of FCMPs and administrative costs.
First, we anticipate that without any changes to the
regulation, the annual caseload growth rate (i.e., the increase in
title IV-E relative and non-relative foster family home placements)
would be 1 percent, and the annual title IV-E claiming growth factor
would be two percent. We retain this same annual two percent claiming
growth factor in estimating the FFP to implement the final rule because
relative and non-relative foster family homes receive the same amount
of title IV-E foster care maintenance payments.
Second, if the NPRM becomes final, we assume a varied
implementation rate of title IV-E relative and kinship foster family
home placements. The estimate assumes a slow rate of change because
agencies may not immediately decide to implement new or revised
relative foster family home licensing or approval standards. In
addition, states and tribes vary on whether policy, regulation or
statutory change must precede such changes.
[[Page 9418]]
Finally, the title IV-E participation rate for relative
foster family home placements was 27.6 percent in FY 2019. Conversely,
the title IV-E participation rate for other foster care placements was
47.7 percent in FY 2019. We assume that this percentage would increase
for relative foster family home placements over time as a result of the
proposed regulation because it allows different licensing or approval
standards for relative and non-relative foster family home placements.
We also assume that the difference in the title IV-E participation rate
of relatives and non-relatives is almost entirely due to the use of the
same licensing or approval standard for both relative and non-relative
foster family home placements. We anticipate incremental changes in the
IV-E participation rate for relative and kinship foster family home
placements over a total of 10 years, and that by year ten, this rate
would increase to 41.7 percent.
Average title IV-E FCMP and Administrative costs per child. To
determine the FY 2019 average FFP cost per child, we divided the total
number of children in foster care in FY 2019 receiving title IV-E
maintenance payments (170,446) by the total FFP claimed on the Form CB-
496 for this time period. This resulted in an average title IV-E FCMP
cost of $9,240 per child; and an average title IV-E administrative cost
of $12,907 (This is the baseline FFP). We used the annual average per
child costs to calculate the FFP that would be claimed over a total of
10 years with and without implementation of the proposed rule. We made
an assumption that 15 percent of the increased relative placement title
IV-E caseload in each year would have already been subject to title IV-
E claiming for administrative cost purposes (without the NPRM) based on
current law that allows these costs for the period specified in the
law, up to 12 months, that an application for licensure is pending (see
section 472(i)(1)(A) of the Act).
Federal Cost Estimates Without Implementation of the Proposed Rule
Line 1. Estimates of the number of title IV-E relative foster
family home placements. As of September 30, 2019, there were 36,953
title IV-E relative foster family home placements. Applying our
assumptions, on line 1 on the table below, we display the annual
increases in title IV-E relative placements without implementation of
the proposed rule for 5 different years, beginning with FY 2023 and
ending with 2032. For example, in FY 2023, there would be 37,322 title
IV-E relative foster family home placements if the regulation is not
implemented: 36,953 + (36,953 x .01) = 37,322.
Lines 2 through 5. Estimates of FFP for title IV-E relative foster
family home placements. To determine increases in the annual FCMP and
administrative costs of title IV-E relative foster family home
placements, we multiplied the average annual federal cost per child
(lines 2 and 3) by the annual number of title IV-E relative foster home
placements on line 1. On the table below, line 4 displays the increased
FCMP costs and line 5 displays increased administrative costs for 5
different years beginning with 2023 and ending with 2032. The baseline
FCMP costs for 2019 is $9,240 x 36,953 = $341,462,572. The baseline
administrative costs for 2019 is $12,907 x 36,953 = $476,934,437.
Federal Cost Estimate With Implementation of This Proposal in a Final
Rule
Lines 6 and 7. Number of title IV-E relative foster family home
placements. On line 6 of the table below, we estimate the annual
increases in title IV-E relative foster family home placements if the
proposed rule becomes final. We used a caseload growth rate of 5
percent in year 1, 15 percent in year 2, 25 percent in year 3, 45
percent in year 5. By year 10, this implementation rate is expected to
reach 70 percent based on our assumptions described earlier. On line 7
of the table below, we determined the annual number of new title IV-E
relative foster family home placements as a result of the regulation.
To calculate the annual number of new title IV-E relative foster family
home placements due to implementation of the final rule, we subtracted
the projected caseload without application of the final rule on line 1
from the projected caseload of the proposed rule on line 6. For
example, in 2023 there would be 1,392 new title IV-E relative foster
family home placements: 38,714-37,323 = 1,392.
Lines 8 through 10. Annual federal costs of title IV-E relative
foster family home placements. Lines 8 and 9 display the annual
increases in FCMPs and administrative costs for the new title IV-E
relative foster family home placements (on line 6) if the final rule is
implemented. To determine the annual federal cost of the NPRM on lines
8 and 9, we multiplied the annual number of new title IV-E relative
foster family home placements on line 6 by the average child costs for
FCMPs and administration on lines 2 and 3. This information is
displayed for 5 different years beginning with 2023 and ending with
2032. For example, on line 8, the cost in 2023 for FCMPs is
approximately $13,117,787 (1,392 children x $9,425 average FCMP). Line
10 displays the annual incremental federal costs of the NPRM if it
becomes a final rule.
[[Page 9419]]
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Estimates without regulatory changes
-----------------------------------------------------------------------------------------------------------------
Ten year total
2019 Baseline 2023 (Year 1) 2024 (Year 2) 2025 (Year 3) 2027 (Year 5) 2032 (Year 10) cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Number of title IV-E relative 36,953 37,323 37,696 38,073 38,838 40,819 ................
placements @1% growth................
2. Avg. title IV-E FCMP FFP claim per $9,240 $9,425 $9,614 $9,806 $10,202 $11,264 ................
[email protected]% claiming growth factor......
3. Avg. title IV-E Administrative cost $12,907 $13,165 $13,428 $13,696 $14,250 $15,733 ................
FFP claim per [email protected]% claiming
growth factor........................
4. FCMP cost.......................... $341,462,572 $351,774,691 $362,398,575 $373,343,289 $396,233,652 $459,790,346 $4,036,424,435
5. Administrative cost................ $476,934,437 $491,337,785 $506,176,589 $521,463,509 $553,435,395 $642,207,572 $5,637,835,507
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated FFP with proposed regulatory changes
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019 2023 2024 2025 2027 2032 Ten year
(Year 1) (Year 2) (Year 3) (Year 5) (Year 10) total cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
6. Number of title IV-E relative 36,953 38,714 41,849 45,042 51,609 61,680 ................
placement @varied caseload growth
rates................................
7. Total annual increase in title IV-E .............. 1,392 4,153 6,970 12,771 20,861 ................
relative placements..................
8. Annual increase in FCMP costs...... .............. $13,117,787 $39,926,838 $68,344,565 $130,295,804 $234,976,401 $1,304,789,018
9. Increase in administrative costs... .............. $15,636,201 $50,233,323 $89,758,368 $175,938,591 $324,690,283 $1,780,051,762
10. Total incremental increase in FFP. .............. $28,753,988 $90,160,161 $158,102,933 $306,234,395 $559,666,684 $3,084,840,780
--------------------------------------------------------------------------------------------------------------------------------------------------------
Title IV-E agency estimates with proposed regulatory changes
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019 2023 2024 2025 2027 2032 Ten year
(Year 5) (Year 10) total cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
11. Maintenance Portion--Incremental .............. $10,054,421 $30,602,817 $52,384,220 $99,868,132 $180,102,915 $1,000,084,711
Non-Federal Share (Using FY 2019 Avg.
FMAP rate of 56.61%).................
12. Administration Portion-- .............. $15,636,201 $50,233,323 $89,758,368 $175,938,591 $324,960,283 $1,780,051,762
Incremental Non-Federal Share (50%
FFP).................................
13. Total Incremental Increase in Non- .............. $25,690,622 $80,836,140 $142,142,587 $275,806,723 $504,793,199 $2,780,136,473
Federal Share........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated costs of this proposal to title IV-E agencies. Title IV-E
agencies may claim reimbursement for the federal cost of FCMPs and
administrative costs, and the title IV-E agency pays its share with
state or tribal funds. Line 11 displays the agency's estimated FCMP
costs and line 12 displays the estimated agency costs for
administration. Line 13 displays the total incremental increase in cost
for the state/tribal share. This information is displayed for 5
different years beginning with 2023 and ending with 2032. The estimates
provided are calculated using the national average federal medical
assistance percentage (FMAP) rate of 56.61 percent for FY 2019 and an
administrative cost FFP rate of 50 percent. This proposal is optional;
therefore, agencies are not required to incur any costs.
Accounting Statement
From a society-wide perspective, many of the effects estimated
above are transfers. We seek comment on estimation of the portion that
represents new resource use attributable to the proposed rule.
Preliminary, as shown in the table below, the full amounts are
categorized as transfers--from either the federal government or Title
IV-E agencies to Title IV-E participants.
----------------------------------------------------------------------------------------------------------------
Units
Primary estimate -------------------------------------------------
Category (millions) Discount rate Period covered
Year dollars (%) (years)
----------------------------------------------------------------------------------------------------------------
Federal Budget Transfers $439 2019 7 10
(annualized)......................
362 2019 3 10
----------------------------------------------------------------------------------------------------------------
From/To............................ From: Federal government To: Title IV-E participants
----------------------------------------------------------------------------------------------------------------
Other Transfers (annualized)....... 395 2019 7 10
326 2023 3 10
----------------------------------------------------------------------------------------------------------------
From/To............................ From: Title IV-E agencies To: Title IV-E participants
----------------------------------------------------------------------------------------------------------------
V. Tribal Consultation Statement
Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments, requires agencies to consult with Indian tribes
when regulations have substantial direct effects on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes. This NPRM does not propose
any mandatory action on Tribal governments or impose any tribal burden
or cost, and therefore does not have substantial direct effects on
Indian tribes. Rather it proposes to provide tribal title IV-E agencies
an option for implementing the foster family home licensing
requirements for the title IV-E foster care program. Accordingly, a
tribal title IV-E agency can adopt separate licensing or approval
[[Page 9420]]
standards for relative or kinship foster family homes, but is not
required to do so. We intend to notify tribal title IV-E agency
leadership about the opportunity to provide comment on the NPRM no
later than the day of publication. Further, shortly after publication
of the NPRM, we plan to hold briefing sessions with tribal title IV-E
agencies and any other interested tribe on the contents of the NPRM.
January Contreras, Assistant Secretary of the Administration for
Children and Families, approved this document on January 20, 2023.
List of Subjects
45 CFR Part 1355
Administrative costs, Adoption Assistance, Child welfare, Fiscal
requirements (title IV-E), Grant programs--social programs, Statewide
information systems, Adoption and foster care, Child welfare, Grant
programs--social programs.
45 CFR Part 1356
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).
Dated: February 8, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, ACF proposes to amend 45
CFR parts 1355 and 1356 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. In Sec. 1355.20, amend paragraph (a) by revising the definition of
``Foster family home'' to read as follows:
Sec. 1355.20 Definitions.
(a) * * *
Foster family home means, for the purpose of title IV-E
eligibility, the home of an individual or family licensed or approved
as meeting the standards established by the licensing or approval
authority(ies), that provides 24-hour out-of-home care for children.
The licensing authority must be a state authority in the state in which
the foster family home is located, a tribal authority with respect to a
foster family home on or near an Indian Reservation, or a tribal
authority of a tribal title IV-E agency with respect to a foster family
home in the tribal title IV-E agency's service area. Agencies may
establish one set of foster family home licensing or approval standards
for all relative or kinship foster family homes that are different from
the set of standards used to license or approve all non-relative foster
family homes. Anything less than full licensure or approval is
insufficient for meeting title IV-E eligibility requirements. Title IV-
E agencies may, however, claim title IV-E reimbursement during the
period of time between the date a prospective foster family home
satisfies all requirements for licensure or approval and the date the
actual license is issued, not to exceed 60 days.
* * * * *
PART 1356--REQUIREMENTS APPLICABLE TO TITLE IV-E
0
3. The authority citation for part 1356 continues to read as follows:
Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq.; 42
U.S.C. 1302.
0
4. Amend Sec. 1356.21 by revising paragraphs (m)(1) and (2), and
adding paragraph (m)(3) to read as follows:
Sec. 1356.21 Foster care maintenance payments program implementation
requirements.
* * * * *
(m) * * *
(1) The amount of the payments made for foster care maintenance to
assure their continued appropriateness, and that the amount made to a
licensed or approved relative or kinship foster family home is the same
as the amount that would have been made if the child was placed in a
licensed or approved non-relative foster family home;
(2) The amount of the payments made for adoption assistance to
assure their continued appropriateness; and
(3) The licensing or approval standards for child care institutions
and foster family homes.
* * * * *
[FR Doc. 2023-03005 Filed 2-13-23; 8:45 am]
BILLING CODE 4184-73-P
