Foster Care Legal Representation, 66769-66780 [2023-20932]
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Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules
to voice any concerns related to
placement when the agency is
considering a placement in such a
facility.
(c) Training and notification
requirements. In addition to meeting the
requirements of paragraph (a)(1)(ii) of
this section, the title IV–E–/IV–B agency
must:
(1) Ensure that its employees who
have responsibility for placing children
in foster care, making placement
decisions, or providing services:
(i) Are trained to implement the
procedural requirements of this section;
and
(ii) Are adequately prepared with the
appropriate knowledge and skills to
serve an LGBTQI+ child related to their
sexual orientation, gender identity, and
gender expression.
(2) Ensure that all of its contractors
and subrecipients who have
responsibility for placing children in
foster care, making placement decisions,
or providing services are informed of
the procedural requirements to comply
with this section, including the required
non-retaliation provisions outlined in
paragraph (a)(4) of this section.
(3) Ensure that any placement
providers who have not chosen to
become designated as safe and
appropriate placements for LGBTQI+
children are informed of the procedural
requirements to comply with this
section, including the required nonretaliation provision outlined in
paragraph (a)(4) of this section.
(d) Severability. Any provision of this
section held to be invalid or
unenforceable as applied to any person
or circumstance shall be construed so as
to continue to give the maximum effect
to the provision permitted by law,
including as applied to persons not
similarly situated or to dissimilar
circumstances, unless such holding is
that the provision of this section is
invalid and unenforceable in all
circumstances, in which event the
provision shall be severable from the
remainder of this section and shall not
affect the remainder thereof.
■ 3. In § 1355.34, revise paragraph
(c)(2)(i) to read as follows:
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§ 1355.34 Criteria for determining
substantial conformity.
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(c) * * *
(2) * * *
(i) Provide, for each child, a written
case plan to be developed jointly with
the child’s parent(s) that includes
provisions: for placing the child in the
least restrictive, most family-like
placement appropriate to his/her needs,
including placements described in
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§ 1355.22(a)(1), and in close proximity
to the parents’ home where such
placement is in the child’s best
interests; for visits with a child placed
out of State/Tribal service area at least
every 12 months by a caseworker of the
agency or of the agency in the State/
Tribal service area where the child is
placed; and for documentation of the
steps taken to make and finalize an
adoptive or other permanent placement
when the child cannot return home
(sections 422(b)(8)(A)(ii) and 471(a)(16)
475(5)(A) of the Act and
§ 1355.22(a)(1));
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[FR Doc. 2023–21274 Filed 9–27–23; 8:45 am]
BILLING CODE P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Children and
Families
45 CFR Part 1356
RIN 0970–AC89
Foster Care Legal Representation
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
(NPRM).
AGENCY:
ACF proposes to allow a title
IV–E agency to claim Federal financial
participation (FFP) for the
administrative cost of an attorney
providing: legal representation in foster
care proceedings of a title IV–E agency
or any other public agency or tribe that
has an agreement in effect under which
the other agency has placement and care
responsibility of a title IV–E eligible
child; independent legal representation
of a child who is either a candidate for
title IV–E foster care, or in title IV–E
foster care (hereafter, referred to as a
child ‘‘who is eligible for title IV–E
foster care’’), the child’s parent(s), and
the child’s relative caregiver(s) in foster
care and other civil legal proceedings
when such legal representation is found
necessary by the Secretary to carry out
the requirements in the title IV–E
agency’s title IV–E foster care plan; and
legal representation of an Indian child’s
tribe, when the child’s tribe intervenes
in any state court proceeding for the
foster care placement or termination of
parental rights of an Indian child who
is in title IV–E foster care or an Indian
child who is a candidate for title IV–E
SUMMARY:
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foster care when such legal
representation is found necessary by the
Secretary to carry out the requirements
in the title IV–E agency’s title IV–E
foster care plan.
DATES: In order to be considered, ACF
must receive written comments on this
NPRM on or before November 27, 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 Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Email: CBComments@acf.hhs.gov.
Include [docket number and/or RIN
number] in subject line of the message.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (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) 205–
8618. Telecommunications Relay users
may dial 711 first. Email inquiries to
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 for
which the Secretary is responsible
under the Act. Section 474(a)(3) of the
Act authorizes Federal reimbursement
for title IV–E foster care program
administrative costs, which are defined
as costs ‘‘found necessary by the
Secretary for the provision of child
placement services and for the proper
and efficient administration of the State
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[title IV–E] plan.’’ This authorization
applies to an Indian tribe, tribal
organization, or tribal consortium that
has an approved title IV–E plan, in the
same manner as it applies to states.
II. Background
Many families that come to the
attention of a child welfare agency are
in the midst of or recovering from
familial, health, housing, or economic
challenges or crises. These obstacles can
impede a family’s ability to provide a
safe and stable environment for their
children. Access to independent legal
representation can help stabilize
families and reduce the need for more
formal child welfare system
involvement, including foster care. For
families with children that have been
placed in foster care, independent legal
representation can expedite
reunification and improve permanency
or help provide access to needed
supports for youth transitioning out of
the child welfare system. For Indian
children that have been placed in foster
care, and their families, early
representation of an Indian child’s tribe
in foster care proceedings promotes
stability for the child by minimizing
unnecessary separation of children and
their parents, and by maximizing
placements of the child with extended
family and other preferred placements.
The Indian Child Welfare Act (ICWA)
and regulations allow an Indian child’s
tribe to intervene in any state court
proceeding for the foster care placement
of, or termination of parental rights to,
an Indian child (25. U.S.C. 1911(c)).
‘‘Indian child,’’ means any unmarried
person who is under age eighteen and
is either a member of an Indian tribe or
is eligible for membership in an Indian
tribe and is the biological child of a
member of an Indian tribe (25 U.S.C.
1903(4)). An ‘‘Indian child’s tribe’’
means the Indian tribe in which an
Indian child is a member or eligible for
membership or, in the case of an Indian
child who is a member of or eligible for
membership in more than one tribe, the
Indian tribe with which the Indian child
has the more significant contacts (25
U.S.C. 1903(5)).
The regulation at 45 CFR 1356.60(c)
details cost-sharing requirements for the
Federal and non-Federal share of title
IV–E foster care program expenditures
for the cost of administrative activities.
A title IV–E agency may claim FFP at
the rate of 50 percent for allowable title
IV–E foster care administrative costs. A
title IV–E agency may also claim FFP for
allowable administrative costs incurred
by any other public agency or tribe
which has an agreement in effect under
which the other agency has placement
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and care responsibility of a title IV–E
eligible child pursuant to 472(a)(2)(B)(ii)
of the Act. Another ‘‘public agency’’ is
child placing agency authorized by
state/tribal law to operate a program of
services to children and families, with
supervision by the title IV–E agency
(CWPM 8.1G #1). Examples of other
public agencies may be found in section
G of the Child Welfare Policy Manual,
and could include the state/tribal
juvenile justice agency, a court, or state/
tribal mental health agency. The
regulation at § 1356.60(c)(2) provides
examples of allowable title IV–E foster
care administrative expenditures that
are necessary for the administration of
the title IV–E agency’s plan, such as
preparation for and participation in
judicial determinations, referral to
services, development of the case plan,
case reviews, and case management and
supervision.
ACF policy historically allowed title
IV–E agencies to claim FFP for the foster
care administrative costs of
‘‘preparation for and participation in
judicial determinations’’ as described in
§ 1356.60(c)(2)(ii), only for the title IV–
E agency’s (and if applicable, the tribe
or other public agency’s) legal
representation. However, in 2019, ACF
revised the policy to allow title IV–E
agencies to also claim FFP for the
administrative costs of independent
legal representation provided by
attorneys representing children who are
candidates for title IV–E foster care,
children who are in title IV–E foster care
(hereafter, ‘‘child who is eligible for title
IV–E foster care’’ refers to both a child
who is a candidate and child who is in
foster care), and the children’s parent(s)
in all stages of foster care legal
proceedings (Child Welfare Policy
Manual [CWPM] 8.1B #30, 31, and 32).
This policy was revised to ensure that
reasonable efforts are made to prevent
removal and finalize the permanency
plan; and parents and youth are engaged
in and complying with case plans. A
‘‘candidate’’ for title IV–E foster care is
a child who is potentially eligible for
title IV–E foster care maintenance
payments and is at serious risk of
removal from home as evidenced by the
title IV–E agency either pursuing the
child’s removal from the home or
making reasonable efforts to prevent
such removal (section 472(i) of the Act).
Further, the agency must document the
child’s candidacy for title IV–E foster
care maintenance payments through one
of the three acceptable methods
identified in the Child Welfare Policy
Manual, such as a case plan. (CWPM
8.1D #2) A child is not considered a
candidate for title IV–E foster care when
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the title IV–E agency has no formal
involvement with the child or simply
because the child has been described as
‘‘at risk’’ due to circumstances such as
social or interpersonal problems or a
dysfunctional home environment
(CWPM 8.1D). This policy change was
well received and generated positive
interest from title IV–E agencies and
child welfare and legal stakeholders.
This NPRM proposes to codify and
expand the policy in CWPM 8.1B #30,
31, and 32. Recent research, as
described in the Section-by-Section,
demonstrates that providing
independent legal representation early
in foster care proceedings and other
civil legal proceedings can help prevent
children from entering foster care, and
for youth already in foster care, can
improve the rate of reunification and
result in more permanent outcomes for
the child and the family. Therefore, this
NPRM proposes that providing
independent legal representation to a
child who is eligible for title IV–E foster
care, their parent(s), and their relative
caregiver(s) to prepare for and
participate in civil legal proceedings is
an allowable administrative cost when
necessary to carry out the requirements
in the agency’s title IV–E foster care
plan in accordance with section 471(a)
of the Act.
III. Section-by-Section Discussion of
Proposed Regulatory Changes
Section 1356.60
ACF proposes to revise § 1356.60(c) to
add a new paragraph (4) providing
examples of allowable administrative
costs for legal representation and add a
new paragraph (c)(2)(xi) to include a
reference to paragraph (4).
In a new paragraph (4)(i), we propose
to clarify that a title IV–E agency may
claim administrative costs for legal
representation when incurred by the
title IV–E agency, or any other public
agency or tribe that has an agreement
with the title IV–E agency for placement
and care responsibility of a title IV–E
eligible child under section
472(a)(2)(B)(ii) of the Act in foster care
proceedings. This proposal is not new
as regulations currently allow this cost
under the example of preparing for and
participating in judicial determinations.
We are specifying this type of legal
representation for agency attorneys as a
separate example of allowable costs and
to make clear that it encompasses public
agencies and tribes that have an
agreement under section 472(a)(2)(B)(ii)
of the Act with the title IV–E agency.
In a new paragraph (4)(ii), we propose
that a title IV–E agency may claim FFP
for administrative costs of independent
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legal representation provided by an
attorney representing a child who is
eligible for title IV–E foster care, their
parent(s), and their relative caregiver(s),
to prepare for and participate in foster
care and other civil legal proceedings
necessary to carry out the requirements
in the agency’s title IV–E foster care
plan. We are also proposing that legal
representation in civil legal proceedings
may include facilitating, arranging,
brokering, advocating, or otherwise
linking clients with providers and
services as identified in the child’s case
plan pursuant to section 475(1) of the
Act. Consistent with Children’s Bureau
policy, a title IV–E agency may claim
title IV–E administrative costs of
paralegals, investigators, peer partners
or social workers that support an
attorney providing such independent
legal representation to the extent that
they are necessary to support the
attorney. Under title IV–E of the Act, the
term ‘‘parent(s)’’ means a biological or
adoptive parent(s) or legal guardian(s),
as determined by applicable state or
tribal law (section 475(2) of the Act).
The term ‘‘legal guardianship’’ means a
judicially created relationship between
child and caretaker (legal guardian)
which is intended to be permanent and
self-sustaining as evidenced by the
transfer to the caretaker of the following
parental rights with respect to the child:
protection, education, care and control
of the person, custody of the person,
and decision making (section 475(7) of
the Act). Therefore, this NPRM proposes
that title IV–E agencies may claim
allowable administrative costs of
independent legal representation for a
legal guardian(s) of a child eligible for
title IV–E foster care, if state or tribal
law considers a legal guardian(s) a
parent(s), and consistent with Federal
law, such legal guardian(s) is intended
to be the permanent caretaker of the
child.
Under this proposal, title IV–E
agencies will also be allowed to claim
administrative costs for independent
legal representation provided to relative
caregivers, even when those relative
caregivers are not a foster child’s legal
guardian. For purposes of claiming the
cost of independent legal representation
provided to the relative caregiver of a
child who is eligible for title IV–E foster
care, the title IV–E agency may define
the term ‘‘relative.’’ For example, a title
IV–E agency may define relative to
include kin and ‘‘fictive-kin.’’
Finally, in paragraph (c)(2) we
propose to add a new paragraph (xi)
referencing the proposed new paragraph
(4) to clarify that such legal
representation is an allowable
administrative cost.
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This NPRM proposes that the title IV–
E agency may determine what
‘independent’ means for purposes of
providing such legal representation.
However, at a minimum, such legal
representation should be provided by an
attorney who: does not have a
concurrent conflict of interest, such as
when the representation of one client
will be directly adverse to the lawyer’s
responsibilities to another client, a
former client or a third person; does not
accept compensation for representing a
client from someone other than the
client unless the client gives informed
consent; and there is no interference
with the lawyer’s independence of
professional judgment or with the
client-lawyer relationship.
Many families involved in the child
welfare system encounter barriers to
accessing services that can help them
overcome family, health, or economic
challenges or crises. Such challenges or
crises may include loss of employment,
inadequate income, unstable housing or
homelessness, food insecurity, mental
health and/or substance misuse
disorders, and family violence. These
crises can impede a family’s ability to
provide a safe and stable environment
for their children (ACYF–CB–IM–21–02,
p.2; ACYF–CB–IM–21–06 p. 12), which
can lead to placement in foster care or
delayed permanency when the family is
not prepared for a child to return home.
For example, of all children that entered
foster care in Federal fiscal year (FY)
2021, 63 percent of removals were
related to neglect (including failure to
provide adequate food, clothing, shelter,
and supervision or care by a person who
is responsible for the child’s welfare).
Nine percent were experiencing housing
issues at the time of removal (Adoption
and Foster Care Analysis and Reporting
System (AFCARS) FY 2021 Report). In
2020, a peer-reviewed journal article
conducted a systematic search of peerreviewed studies conducted in the U.S.
regarding the association of housing
stress with child maltreatment. The
literature indicates indicate that
‘‘housing stress is associated with an
increased likelihood of caregiver or
child self-reported maltreatment, child
protective services (CPS) reports,
investigated and substantiated CPS
reports, out-of-home placements, and
maltreatment death (Chandler CE,
Austin AE, Shanahan ME. Association
of Housing Stress With Child
Maltreatment: A Systematic Review.
Trauma Violence Abuse. 2022
Apr;23(2):639–659. doi: 10.1177/
1524838020939136. Epub 2020 Jul 17.
PMID: 32677550; PMCID:
PMC7855012).
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Preventing a child from being
removed from their home is critical to
a child’s well-being because removal,
even for a short period of time, exposes
the child to a range of trauma and stress
(Sankaran, Vivek. ‘‘Using Preventive
Legal Advocacy to Keep Children from
Entering Foster Care.’’ Wm. Mitchell L.
Rev. 40, (3): 1036–1047, 2014). A child
who is at risk of entering foster care has
better outcomes when they remain at
home compared to when they are placed
into foster care (Joseph J. Doyle, Jr.
‘‘Causal Effects of Foster Care: An
Instrumental Variables Approach.’’
Children and Youth Services Review
35(7): 1143–1151, 2013.).
Research demonstrates that providing
independent legal representation in
foster care and other civil legal
proceedings can minimize some of these
barriers that contribute to bringing
families with children at risk of entering
foster care in contact with the child
welfare system and may help prevent
children from entering foster care
(Sankaran, Vivek. ‘‘Using Preventive
Legal Advocacy to Keep Children from
Entering Foster Care.’’ Wm. Mitchell L.
Rev. 40, (3): 1036–1047, 2014). One
recent study showed that when parents
are represented by an interdisciplinary
law office with legal specialists to assist
with immigration, benefits, criminal,
housing, or other concerns, children
placed in foster care were safely
returned to their families about 43
percent more often in the first year,
children’s time in foster care was
reduced by nearly four months, and
families were no more likely to
experience a subsequent substantiated
report of maltreatment (Gerber, Lucas
A., Pang, Yuk C., Ross, Timothy,
Guggenheim, Martin, Pecora, Peter J., &
Miller, Joel. ‘‘Effects of an
interdisciplinary approach to parental
representation in child welfare,’’
Children and Youth Services Review,
Volume 102, 2019, Pages 42–55, ISSN
0190–7409, https://doi.org/10.1016/
j.childyouth.2019.04.022).
Outcome data from legal service
programs and pilot projects demonstrate
that providing independent legal
representation to address a family’s civil
legal issues results in a high success rate
for preventing children from entering
foster care and for children who are in
foster care, expediting permanency
(American Bar Association Center on
Children and the Law & National
Council of Juvenile and Family Court
Judges. Supporting Early Legal
Advocacy before Court Involvement in
Child Welfare Cases (March, 2021). For
example:
• The Detroit Center for Family
Advocacy conducted a pilot program to
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provide independent legal
representation to address civil legal
issues for families in which a child has
been found abused or neglected.
Typically, lawyers filed for a restraining
order, drafted a power of attorney, filed
for a guardianship, applied for public
benefits, or helped with specialeducation entitlements. Of the 55
families who were caring for 110
children served, none of the children
entered foster care. (Detroit Center for
Family Advocacy Pilot Evaluation
report July 2009–June 2012; Sankaran,
Vivek. Case Closed: Addressing Unmet
Legal Needs and Stabilizing Families.
M.L. Raimon, co-author. Center for the
Study of Social Policy [2014] [Detroit
model project])
• Iowa Legal Aid is piloting an early
representation program for parents
before petitions are filed. The program
assists with private guardianship,
custody, protective orders, landlord/
tenant disputes, and appeals of denials
of public benefits. Outcome data from
2018 show the program, in four
counties, prevented over 100 children
from becoming court involved (Family
Justice Initiative. Implementing FJI
System Attributes, Attribute 4: Timing
of Appointment, 2020.; Iowa Legal Aid.
Parent Representation Project,
undated.).
• Legal Services of New Jersey has
operated a pre-petition representation
program since 2018. The cases are
referred by the child welfare agency and
typically involve representation around
public benefits and access to affordable
housing, child support and custody
issues, and school-related issues.
Outcome data indicate that by 2020, the
program had prevented 200 removals
(Implementing FJI System Attributes,
Attribute 4: Timing of Appointment,
2020.).
• The Washington Family
Intervention Response to Stop Trauma
Clinic provides pre-petition
representation to parents of substanceexposed infants. The program often
works with the parent to identify and
obtain temporary custody with relatives
or others. Attorneys also advocate
around services for parents with
substance use disorders, including for
programs that allow continued
placement of the child with the parent.
While this is a small and relatively new
program, initial outcome data suggests
the majority of the parents working with
the program can avoid a dependency
filing and, thus, prevent the removal of
their children from the home (Family
Justice Initiative, 2020; Wall, Tonya and
Adam Ballout. ‘‘Using Legal Services to
Keep Children in Families: The
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F.I.R.S.T. Clinic.’’ Children’s Rights
Litigation, October 3, 2019.).
• The Vermont Parent Representation
Center provides legal representation in
civil matters in cases where a child
faces a significant risk of being removed
from his or her home. In 78 percent of
cases, children did not enter foster care.
In cases in which children entered
foster care, 50 percent went home to
their families expeditiously (VPRC’s
Performance Measures, Vermont Parent
Representation Center, Inc.) (Why VPRC
Is Important to Vermont Families,
Vermont Parent Representation Center,
Inc.).
• Children’s Law Center of California
(CLC) provides pre-court legal advocacy
to expecting and parenting youth who
have a dependency case. Case managers
and attorneys address issues such as
drug use, child trafficking and
exploitation, mental health and
domestic violence. The project has
successfully prevented filings in cases
involving domestic violence by
counseling clients and helping them
obtain restraining orders once a referral
was triggered.
• Legal Aid Services of Oklahoma
operates an early legal advocacy project.
In cases where the state will not reunify
a child in foster care because of
domestic abuse, attorneys provide legal
representation in divorce, guardianship
and landlord tenant issues. The benefit
of this early advocacy project is that it
avoids removal of children.
• In New York, the Bronx Defenders
provide legal representation for parents
in abuse and neglect cases in Bronx
Family Court, advocates for families
during the child protection investigation
before a legal case is filed and advises
pregnant women who are at risk of child
protection involvement. Attorneys
advise parents of their rights,
accompany them to meetings and
conferences with the Administration for
Children’s Services, refer them to
community-based services, and work
with parents to identify family supports.
Under the revision proposed in this
NPRM, we specify that allowable
administrative costs of an attorney
providing independent legal
representation in other civil legal
proceedings may include facilitating,
arranging, brokering, advocating, or
otherwise linking clients with providers
and services as identified in the child’s
case plan. For example, a family may
need to secure safe and stable housing
to prevent the unnecessary removal of a
child from the home, or a youth aging
out of foster care may need access to
stable housing to finalize a case plan in
support of their permanency goal as
required by, respectively, sections
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471(a)(15) and 475(5)(H) of the Act.
Allowable civil legal representation may
include preparing for or participating in
a legal proceeding to advocate with a
housing authority to help a family or a
youth aging out of foster care secure a
housing voucher, appealing a denial of
a housing voucher, or suing a landlord
whose housing has unsafe conditions in
order to execute the child’s case plan.
Additional examples of legal
representation in civil legal proceedings
that may be necessary to carry out the
title IV–E foster care plan include:
• An attorney providing independent
legal representation to an eligible child/
parent to prepare for and participate in
a legal proceeding to establish paternity
when it is necessary to establish title
IV–E eligibility or meet the requirement
for the agency to file for termination of
parental rights when a child has been in
foster care for 15 of the most recent 22
months (section 475(5)(E) of the Act).
• An attorney providing independent
legal representation to an eligible child/
parent/relative caregiver to prepare for
and participate in a legal proceeding to
help a victim of family violence obtain
an order of protection against the abuser
to maintain or secure custody of their
child(ren), secure stable housing, secure
public benefits, or establish custody or
guardianship, when it is necessary to
meet the plan requirement to make
reasonable efforts to prevent the
unnecessary removal of a child from the
home or to finalize a case plan in
support of a child’s permanency goal as
required by section 471(a)(15) of the
Act.
• An attorney providing independent
legal representation to an eligible child/
parent/relative caregiver to prepare for
and participate in a legal proceeding to
enroll a child in school or access
education records when it is necessary
to meet plan requirements to ensure the
educational stability of the child while
in foster care, taking into account the
appropriateness of the current
educational setting and the proximity to
the school in which the child is enrolled
at the time of placement in foster care;
provide a copy of educational records to
a child at no cost at the time the child
leaves foster care; and ensure a child is
enrolled in school per sections
471(a)(30) and 475(1)(G) and (5)(D) of
the Act.
• An attorney providing independent
legal representation to an eligible child
to prepare for and participate in a
proceeding to establish a health care
power of attorney, health care proxy, or
other similar document recognized
under State law when it is necessary to
meet the requirement to develop a
transition plan in the 90-day period
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immediately prior to the date on which
the child will age out of foster care, per
section 475(5)(H) of the Act.
• An attorney providing independent
legal representation to an eligible child/
parent/relative caregiver to prepare for
and participate in a proceeding to
resolve inaccuracies in a youth’s credit
report when it is necessary to meet the
plan requirement to provide a youth a
copy of any consumer report each year
until the child is discharged from care,
and provide assistance (including, when
feasible, from any court-appointed
advocate for the child) in interpreting
and resolving any inaccuracies in the
report, per section 475(5)(I) of the Act.
• An attorney providing independent
legal representation to an eligible child/
parent/relative caregiver to prepare for
and participate in a proceeding to help
a child obtain, change, or correct official
documentation when it is necessary to
meet the plan requirements to provide
youth discharged from foster care an
official or certified copy of the United
States birth certificate of the child, a
social security card issued by the
Commissioner of Social Security, health
insurance information, a copy of the
child’s medical records, and a driver’s
license or identification card issued by
a State in accordance with the
requirements of section 202 of the REAL
ID Act of 2005, and any official
documentation necessary to prove that
the child was previously in foster care
per sections 475(5)(I) and 471(a)(27) of
the Act.
• An attorney providing independent
legal representation to an eligible child/
parent/relative caregiver to prepare for
and participate in a proceeding to help
a youth aging out of foster care access
public benefits, housing, health
insurance, and education when it is
necessary to meet the plan requirement
to develop a transition plan 90-days
immediately prior to the date on which
the child will age out of foster care, per
section 475(5)(H) of the Act.
In a new paragraph (4)(iii), ACF
proposes that a title IV–E agency with
placement and care responsibility for an
Indian child may claim FFP for
administrative costs of legal
representation provided by an attorney
representing an Indian child’s tribe (as
defined by 25 U.S.C. 1903(5)), when the
child’s tribe intervenes in any state
court proceeding for the foster care
placement or termination of parental
rights of an Indian child who is in title
IV–E foster care or an Indian child who
is a candidate for title IV–E foster care
when such legal representation is found
necessary by the Secretary to carry out
the requirements in the title IV–E
agency’s title IV–E state plan. The ICWA
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was passed by Congress in 1978 to
address the long history of failing ‘‘to
recognize the essential tribal relations of
Indian people and the cultural and
social standards prevailing in Indian
communities and families.’’ (25 U.S.C.
1901(5)). ICWA protects the ‘‘best
interests of Indian children and
promotes the stability and security of
Indian tribes and families by the
establishment of minimum Federal
standards for the removal of Indian
children from their families and the
placement of such children in foster or
adoptive homes which will reflect the
unique values of Indian culture, and by
providing for assistance to Indian tribes
in the operation of child and family
service programs.’’ (25 U.S.C. 1902).
As one tribal leader told Congress,
tribes cannot long survive as ‘‘selfgoverning’’ communities if they cannot
pass their ‘‘heritage’’ on to the next
generation. Holyfield at 34 (citation
omitted). Congress thus recognized that,
by severing that connection to future
generations, the breakup of Indian
families threatens ‘‘the continued
existence and integrity of Indian tribes.’’
25 U.S.C. 1901(3). The Federal
Government has an interest in ensuring
that Indian tribes, vested with a
statutory right to intervene in state
foster care placement proceedings in
accordance with 25 U.S.C. 1911(c), have
legal representation to preserve and
protect the continued existence and
integrity of Indian tribes. As the
Supreme Court noted in a case
interpreting ICWA, ‘‘Congress [ ] found
that the breakup of Indian families
harmed not only Indian children and
their parents, but also their tribes.’’
Mississippi Band of Choctaw Indians v.
Holyfield, 490 U.S. 30 at 33–34 (1989).
This proposal supports the goal of
tribal self-governance by supporting
Indian families, both by minimizing
unnecessary separations of Indian
children from their parents and by
maximizing their placement with
extended family, other tribal members,
or other tribal families when they
cannot remain with their parents. It is
well documented that for Indian
children who have been placed in foster
care, and their families, early
representation of an Indian child’s tribe
in foster care placement proceedings
promotes stability for the child by
minimizing unnecessary separation of
children and their parents, and by
maximizing placements of the child
with extended family and other
preferred placements (Frequently Asked
Questions Bureau of Indian Affairs Final
Rule: Indian Child Welfare Act (ICWA)
Proceedings, June 17, 2016).
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The information provided by the
tribe’s attorney provides the cultural
and social standards of the child’s tribe
that are necessary for the court to make
essential determinations that reasonable
efforts were made as required under the
title IV–E plan. For example, the Act
requires the court to determine whether
the agency made reasonable efforts to
finalize a permanency plan. The tribal
attorney’s representation of the cultural
and social standards for family
connection, reunification and what
permanency looks like in the child’s
tribe, may be necessary to finalize the
permanency plan for an Indian child.
For example, if adoption is the
permanency plan for an Indian child,
the tribal attorney can provide
information on customary adoption,
which ensures ‘‘the same stability and
permanence of traditional adoption
without terminating parental rights.’’ As
with all allowable administrative costs,
it is the option of the title IV–E agency
with placement and care responsibility
of the child whether or not to
implement this option to claim FFP for
this purpose.
ACF is making this proposal because
legal representation provided by an
attorney to an Indian child’s tribe
intervening in state court proceedings as
described above, would be an allowable
administrative cost necessary for the
proper and efficient administration of
the title IV–E plan when it fulfills a
specific title IV–E plan requirement.
Such representation also avoids
unintended consequences adverse to a
child’s interests, such as loss of tribal
membership and benefits (ICWA
Compliance Task Force Report to the
California Attorney General’s Bureau of
Children’s Justice. 2017).
Equity Impact
This NPRM is consistent with the
administration’s priority of advancing
equity for those historically underserved
and adversely affected by persistent
poverty and inequality (Executive Order
13985, Advancing Racial Equity and
Support for Underserved Communities
Through the Federal Government [Jan.
20, 2021]). Research well-documents the
overrepresentation of certain racial and
ethnic groups in foster care relative to
their representation in the general
population. African American and
American Indian or Alaska Native
children are at greater risk than other
children of being confirmed for
maltreatment and placed in out-of-home
care. They stay in foster care longer and
have disparate outcomes. For example,
they are less likely to reunify with their
families (Child Welfare Information
Gateway. (2021). Child welfare practice
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to address racial disproportionality and
disparity. U.S. Department of Health
and Human Services, Administration for
Children and Families, Children’s
Bureau. https://www.childwelfare.gov/
pubs/issue-briefs/
racialdisproportionality/). Access to
legal representation for an Indian child’s
tribe promotes equity for those
historically and adversely affected by
inequality by minimizing unnecessary
separation of children and their parents,
and by maximizing placements of the
child with extended family, within the
tribal community, and other preferred
placements. Research also documents
the overrepresentation of children and
parents with disabilities in foster care
relative to their representation in the
general population. As many as 60
percent of children in foster care have
disabilities. Parents with disabilities are
more likely than nondisabled parents to
have child welfare system involvement.
Children with disabilities are
institutionalized at higher rates and for
longer periods of time. Children of
parents with disabilities have higher
out-of-home placement than other
children. Studies have also found
disabled parents have high rates of
termination of parental rights (Albert
SM, Powell RM. Supporting disabled
parents and their families: perspectives
and recommendations from parents,
attorneys, and child welfare
professionals. J Public Child Welf.
2020;15(5):529. doi: 10.1080/
15548732.2020.1751771. PMID:
37220548; PMCID: PMC10202498.).
Access to independent legal
representation early in foster care and
other civil legal proceedings necessary
to carry out the requirements in the
agency’s title IV–E foster care plan may
prevent children of color from entering
foster care. For children in foster care,
it may increase the rate of reunification
and provide a quicker timeframe for
achieving permanency. For young
adults aging out of foster care, such legal
representation may provide access to
services and supports needed to achieve
permanency and long-term stability.
This proposed change can also help
low-income families adversely affected
by persistent poverty who are struggling
with unemployment, inadequate
income, unstable housing, evictions or
homelessness, and food insecurity when
confronted with potential removal of a
child from the home, or when a relative
is caring for a child in their home.
According to a 2017 study, 71 percent
of low-income households experienced
at least one civil legal problem in the
previous year, including problems with
health care, housing conditions,
disability access, veterans’ benefits, and
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domestic violence. Of the low-income
households reporting civil legal
problems, 86 percent received
inadequate or no legal help;
(Washington, D.C.: The University of
Chicago for Legal Services Corporation,
2017). As previously explained, studies
also show that when a child is removed
from the home, having access to legal
representation not only for child welfare
proceedings but also for other civil legal
issues earlier in a case can improve the
rate of reunification, halve the amount
of time needed to secure legal
guardianship or adoption, and result in
more permanent outcomes for the child
and the family (Thornton, Elizabeth, &
Gwin, Betsy. High-Quality Legal
Representation for Parents in Child
Welfare Cases Results in Improved
Outcomes for Families and Potential
Cost Savings. 46 Fam. L.Q. 139 (2012)).
That means that parents without
independent legal representation in
child welfare proceedings and in other
civil legal proceedings are at a
disadvantage in having their children
returned to them. Therefore, providing
families adversely affected by poverty
with independent legal representation
in foster care and other civil legal
proceedings necessary to carry out the
requirements in the agency’s title IV–E
foster care plan may improve outcomes
related to reunification and
permanency.
In addition, access to legal
representation for an Indian child’s tribe
promotes equity for those historically
and adversely affected by inequality by
minimizing unnecessary separation of
children and their parents, and by
maximizing placements of the child
with extended family, within the tribal
community, and other preferred
placements.
IV. Regulatory Process Matters
Regulatory Planning and Review
Executive Order 12866 and Executive
Order 13563
Executive Orders (E.O.s) 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). E.O. 13563 is supplemental to,
and reaffirms the principles, structures,
and definitions governing regulatory
review as established in E.O. 12866, as
amended by Executive Order 14094,
emphasizing the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
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and of promoting flexibility. Section 3(f)
of E.O. 12866, as modified by 14094,
defines ‘‘a significant regulatory action’’
as an action that is likely to result in a
rule (1) having an annual effect on the
economy of $200 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; (2) creating serious
inconsistency or otherwise interfering
with an action taken or planned by
another agency; (3) materially altering
the budgetary impacts of entitlements,
grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raising legal or policy
issues for which centralized review
would meaningfully further the
President’s priorities, or the principles
set forth in the Executive order. This
proposed rule is a significant rule and
the Regulatory Impact Analysis for this
proposed rule identifies economic
impacts that exceed the threshold for
significance under section 3(f)(1) of
Executive Order 12866. The estimated
cost and transfer impacts of this
regulatory proposal are provided below.
As described in the Section-by-Section
discussion above, providing legal
representation in foster care proceedings
and other civil legal proceedings
minimize barriers that contribute to
bringing families with children at risk of
entering foster care in contact with the
child welfare system and may help
prevent children from entering foster
care. For youth already in foster care,
such legal representation can improve
the rate of reunification resulting in
more permanent outcomes for the child
and the family. For young adults
transitioning out of foster care, such
legal representation may provide access
to services and supports needed to
achieve permanency and for long-term
stability.
Alternatives Considered: In 2019,
ACF revised the Child Welfare Policy
Manual to allow title IV–E agencies to
claim FFP for the administrative costs of
independent legal representation
provided by attorneys representing
children who are candidates for title IV–
E foster care, children who are in title
IV–E foster care, and the children’s
parent(s) in all stages of foster care legal
proceedings. As an alternative to this
NPRM, we considered only codifying
this policy (see CWPM 8.1B #30, 31, and
32). However, this alternative would not
meet our goals for two reasons. First, the
alternative would not allow an agency
to claim such costs in non-foster care
civil legal proceedings, meaning that an
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agency could only continue using state/
tribal or local funds for legal
representation in civil legal
proceedings. As described in the
Section-by-Section, allowing
administrative costs for legal
representation in civil legal proceedings
can help prevent children from entering
foster care, and for youth already in
foster care, can improve the rate of
reunification and result in more
permanent outcomes for the child and
the family. Second, the alternative
would only allow independent legal
representation for the child’s parent(s)
and not the child’s relative caregiver(s)
as proposed. However, such legal
representation for the growing number
of relative caregivers, who often lack
advance preparation and struggle with
similar legal barriers as a parent(s), will
reduce the need for more formal child
welfare system involvement. For
children in foster care, providing legal
representation to relative caregivers
would minimize some of the barriers
that prevent a child from being placed
with a relative caregiver, enable more
children to maintain family
connections, stabilize placements and
result in more permanent outcomes for
the child and the family.
We also considered narrowly defining
the activities an attorney may perform to
prepare for and participate in civil legal
proceedings for which a title IV–E
agency may claim FFP. However, as
described in the Section-by-Section,
legal service programs and pilot projects
that provided legal representation in a
wide range of civil legal issues
demonstrated a high success rate for
preventing children from entering foster
care and for children who are in foster
care, expediting permanency. Therefore,
the proposal broadens ‘‘preparation for
and participation in civil legal
proceedings’’ to include facilitating,
arranging, brokering, advocating, or
otherwise linking clients with providers
and services as identified in the child’s
case plan.
We further considered whether the
statute would permit the proposal to be
mandatory for title IV–E agencies.
However, title IV–E does not provide
authority to require agencies to provide
such representation or to claim FFP for
administrative costs. This is because
title IV–E agencies determine the costs
necessary to administer the title IV–E
Foster Care Program, and in turn,
Federal reimbursement for allowable
costs is permitted at 50 percent FFP.
Without this proposal codified, title
IV–E agencies may continue to claim
FFP for the administrative costs of
independent legal representation
provided by attorneys, representing
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children who are eligible for title IV–E
foster care, and the children’s parent(s)
only in foster care legal proceedings.
Finally, as an alternative to this
NPRM, we considered continuing to not
allow title IV–E agencies to claim FFP
for the administrative cost of
independent legal representation
provide by an Indian child’s tribe when
the tribe intervenes in state court child
welfare proceedings. However, such
legal representation promotes stability
for the child by minimizing unnecessary
separation of children and their parents,
and by maximizing placements of the
child with extended family, tribal
community, and other preferred
placements.
Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA)
(see 5 U.S.C. 605(b) as amended by the
Small Business Regulatory Enforcement
Fairness Act) requires Federal agencies
to determine, to the extent feasible, a
rule’s impact on small entities, explore
regulatory options for reducing any
significant impact on a substantial
number of such entities, and explain
their regulatory approach. 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 rulemaking will 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 document.
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 rulemaking does not
contain mandates that will impose
spending costs on state, local, or tribal
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governments in the aggregate, or on the
private sector, in excess of the
threshold.
Congressional Review
The Congressional Review Act (CRA)
allows Congress to review major rules
issued by Federal agencies before the
rules take effect (see 5 U.S.C.
801(a)(1)(A)). The CRA defines a ‘‘major
rule’’ as one that has resulted, or is
likely to result, in (1) an annual effect
on the economy of $100 million or
more; (2) a major increase in costs or
prices for consumers; individual
industries; Federal, State, or local
government agencies; or geographic
regions; or (3) significant adverse effects
on competition, employment,
investment, productivity, or innovation,
or on the ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets (see 5 U.S.C. chapter 8).
Based on our estimates of the impact of
this rulemaking, the Office of
Information and Regulatory Affairs
(OIRA) in OMB anticipates that a final
rule would be ‘major’ under the CRA.
Assessment of Federal Regulations and
Policies on Families
Section 654 of the Treasury and
General Government Appropriations
Act of 1999 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 Public Law 105–277,
because the action it takes in this NPRM
will 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 rulemaking will 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. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
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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)). Collection requirements for
title IV–E foster care administrative
costs are currently authorized under
OMB number 0970–0510 and include
administrative costs for independent
legal representation. This action does
not include any new information
collection requirements or changes to
existing information collection
requirements.
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Annualized Cost to the Federal
Government
The Federal cost of the NPRM over
ten fiscal years (2023–2032) is estimated
to be $2,936,285,160 ($2,099,154,001
(foster care legal proceedings (FC)) +
$631,567,527 (civil legal proceedings) +
$205,563,632 (FC proceedings in which
an Indian child’s tribe has intervened).
The combined total for Federal and
agency costs over ten fiscal years is
estimated to be $5,872,570,319
($4,198,308,001 for FC legal proceedings
+ $1,263,135,054 for civil legal
proceedings + $411,127,264 for FC
proceedings in which an Indian child’s
tribe has intervened). It is optional for
a title IV–E agency to claim the
administrative cost of providing
independent legal representation in
foster care and civil legal proceedings to
eligible children, their parents, and their
relative caregivers, and for legal
representation to an Indian child’s tribe
that intervenes in state court
proceedings for the foster care
placement and termination of parental
rights of an eligible child.
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Assumptions: ACF made several
assumptions when calculating title IV–
E administrative costs:
• FY 2021 title IV–E foster care
administrative cost claims are used as
the base year amounts for projection
purposes in this NPRM and were
sourced from Form CB–496 FC part 1.
These are actual claims, and not
estimates. For the purposes of these
burden estimates, we will use the
phrase ‘‘candidates’’ to refer to the
number of children claimed as title IV–
E candidates and ‘‘IV–E FC’’ for
children who are in title IV–E foster
care, the two populations of children
(and their parents and relative
caregivers) to which the costs of this
NPRM apply.
• AFCARS data provides the number
of title IV–E eligible children who
identified as ‘‘American Indian\AK
Native Alone Or In Combination.’’ We
assume that this population of children
is potentially subject to ICWA
requirements in state court foster care
placement proceedings. We further
assume that each such Indian child’s
tribe will intervene in state court foster
care placement proceedings.
• Title IV–E agencies may claim
reimbursement for 50 percent of the
administrative costs to provide legal
representation in foster care
proceedings, including those in which
an Indian child’s tribe has intervened in
state court foster care placement
proceedings, and civil proceedings, and
the title IV–E agency must pay its share
with state or tribal funds. This nonFederal share will be an equal
percentage of 50 percent because a title
IV–E agency must match the same
amount of funds for which it seeks
Federal reimbursement.
• We assume an overall annual 1
percent caseload growth rate in the
population of candidates for title IV–E
foster care and IV–E FC for whom title
IV–E administrative costs will be
claimed in civil legal proceedings and
in FC legal proceedings, including those
in which an Indian child’s tribe has
intervened in state court foster care
placement proceedings. This is based on
current title IV–E budgetary projections.
• We assume an annual FFP claims
growth factor of 4.7 percent for FY 2023
and 2.3 percent from FY 2024 to FY
2032 for the administrative costs of
independent legal representation in FC
and in other civil legal proceedings.
This is based on current title IV–E
budgetary projections of the percentage
of change in title IV–E administrative
cost claims annually. We assume the
calculated FY 2021 title IV–E foster care
administration eligibility rate for
children classified as American
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Indian\AK Native Alone Or In
Combination will remain unchanged for
the ten FY (FYs 2023–2032) project
period.
• An implementation level is used in
the calculations for the chart below as
an estimated projection for the growth
in the number of children (either
directly or on behalf of a parent or
relative caregivers) receiving
independent legal representation in
foster care legal proceedings or civil
legal proceedings. Similarly, an
implementation level is used in the
calculations for the chart below as an
estimated projection for the growth in
the number of children whose tribe is
receiving legal representation in state
foster care placement and termination of
parental rights legal proceedings. The
implementation level is different for the
cost estimates for foster care legal
proceedings and civil legal proceedings,
and state court foster care placement
legal proceedings in which an Indian
child’s tribe has intervened as explained
below:
Æ For independent legal
representation in foster care legal
proceedings, the implementation level
is measured separately for children who
are candidates and IV–E FC. The base
year (FY 2021) implementation levels
are calculated from Form CB–496 FC
part 1 which identifies for each title IV–
E agency on a quarterly basis the
average monthly number of children
where independent legal representation
for foster care proceedings is being
provided for a candidate or IV–E FC. For
FY 2021, the independent legal
representation for foster care
proceedings implementation level is
15.4 percent for IV–E FC and 7.9 percent
for candidates. For FYs 2023–2032, the
implementation levels are derived from
the experience observed in the reported
caseload data between FY 2020 and FY
2021 where a 24 percent growth rate
occurred for children in title IV–E foster
care. We assume that the growth rate
will peak in the year this NPRM is
finalized and then gradually diminish as
more title IV–E agencies take up the
option to claim for these costs, and more
children are receiving this
representation.
Æ For legal representation by an
Indian child’s tribe in state court foster
care placement proceedings a single
implementation level is measured for
children who are candidates and in IV–
E FC. The base year (FY 2021)
implementation level is set at zero
percent since Federal funding for this
service will not be available until this
NPRM is finalized. Although there is no
known data on the extent to which we
anticipate title IV–E agencies will begin
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providing legal representation by tribes
to intervene in state court foster care
placement proceedings, we anticipate
that this administrative cost will be
made available to 5 percent of
potentially eligible children in FY 2023
and that most of the growth will occur
in years 2–5 (FYs 2024–2027). In FY
2027 we anticipate 35 percent of
potentially eligible tribes will receive
legal representation. In subsequent FYs,
the implementation rate growth will
gradually diminish as more title IV–E
agencies take up the option to claim for
these costs, and more children on whose
behalf a tribe is receiving this
representation.
Æ For independent legal
representation in civil legal
proceedings, the implementation level
presumes that administrative cost
claims will be limited to those children
on whose behalf independent legal
representation in foster care legal
proceedings are claimed. Not all
children receiving legal representation
in FC proceedings need representation
related to civil matters because the
reasons for child welfare involvement
vary. Additionally, not all title IV–E
agencies providing independent legal
representation in foster care legal
proceedings will opt to also provide
such legal representation in civil
proceedings. We have no estimate for
FY 2021 costs for legal representation in
civil legal proceedings as these will be
new costs as a result of finalizing this
NPRM. We assume that the proportion
of children receiving legal
representation for civil legal
proceedings (for both candidates and
IV–E FC) will be derived from among
those receiving representation for foster
care legal proceedings. We estimate that
the civil legal proceedings title IV–E
caseload will grow gradually each FY
from 20 percent in FY 2023, to 45
percent in FY 2027 and up to 56 percent
in FY 2032 of the children on whose
behalf representation is also being
provided for foster care legal
proceedings. While there is a great deal
of interest in providing legal
representation in civil legal
proceedings, our projections take into
account that, in most instances, new or
revised protocols will need to be
developed with various organizations to
implement a final rule. There will also
be a need to secure state or tribal funds
for the non-Federal share of funding,
which often requires legislative
approvals.
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Federal Cost Estimate for Independent
Legal Representation in Foster Care
Legal Proceedings
Here we describe the individual
calculations by line that are in the
following chart. All entries in the chart
and the narrative below are rounded to
the nearest whole number. The
calculations to obtain these amounts,
however, were performed without
applying rounding to the involved
factor(s).
Line 1. National number of children
(candidates and IV–E FC) receiving legal
representation in foster care legal
proceedings. Line 1 of the table below
provides that the actual number of
children receiving independent legal
representation in FC proceedings in FY
2021 (baseline) was 10,477 candidates
and 26,092 IV–E FC. Line 1 also
includes estimates of the annual number
of children receiving independent legal
representation in foster care proceedings
in the following subsequent years: FYs
2023, 2024, 2025, 2027 and in 2032, the
estimated number of children is 29,525
candidates and 73,530 IV–E FC.
Line 2. National average FFP claim
per child (candidates and IV–E FC) for
independent legal representation in
foster care proceedings. Line 2 of the
table below displays that in FY 2021,
the actual average title IV–E
administrative cost claim per child
receiving independent legal
representation in foster care legal
proceedings was $742 for title IV–E
candidates and $2,709 for children in
title IV–E foster care. We also provide
estimates of the average title IV–E claim
per child in the following subsequent
years: FYs 2023, 2024, 2025, 2027 and
in 2032 the per child average claim is
estimated at $3,481 (IV–E FC) and $954
(candidates).
Line 3. Average FFP claims for
candidates and children in title IV–E
foster care for independent legal
representation in foster care legal
proceedings. Line 3 of the table below
displays that in FY 2021, the actual FFP
for children receiving independent legal
representation in foster care legal
proceedings was $7,777,621 for
candidates and $70,689,345 for children
in IV–E FC. We also provide estimates
of the average annual claims for these
children in the following subsequent
years: FYs 2023, 2024, 2025, 2027 and
in 2032 the estimated cost is
$28,160,009 (candidates) and
$255,941,062 (IV–E FC).
Line 4. Total Federal costs for
independent legal representation in
foster care legal proceedings
(candidates and IV–E FC). Line 4 of the
table below provides that the actual
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66777
total FFP in FY 2021 was $78,466,966,
which is the sum of the costs of
independent legal representation in
foster care legal proceedings for
candidates and IV–E FC. We also
provide estimates of the total FFP for
these costs in the following subsequent
years: FYs 2023, 2024, 2025, 2027 and
in 2032 the estimated annual cost is
$284,101,071. The estimates for these
subsequent FYs were calculated by
multiplying line 1 by line 2 for
candidates and IV–E FC.
Line 5. Non-Federal costs for
independent legal representation in
foster care legal proceedings. Line 5 of
the table below displays the total FY
2021 non-Federal costs of independent
legal representation in foster care
proceedings for candidates and IV–E FC
was $78,466,966. This number is the
same as line 4 because the FFP rate used
in these estimates is 50 percent, thus we
estimate the costs for Federal and nonFederal to be the same. We also provide
estimates of the total non-Federal costs
of independent legal representation in
foster care legal proceedings in the
following subsequent years: FYs 2023,
2024, 2025, 2027 and in 2032 the
estimated annual cost is $284,101,071.
Line 6. Total Federal and non-Federal
costs of independent legal
representation in foster care legal
proceedings. Line 6 of the table below
is the sum of lines 4 and 5 for the total
Federal and non-Federal costs of
independent legal representation in
foster care legal proceedings for
candidates and IV–E FC. The total FY
2021 costs were $156,933,932. We also
provide estimates of these total Federal
and non-Federal costs in the following
subsequent years: FYs 2023, 2024, 2025,
2027 and in 2032 the estimated annual
cost is $568,202,142.
Federal Cost Estimate of Independent
Legal Representation in Other Civil
Legal Proceedings
Line 7. Number of children
(candidates and IV–E FC) receiving
independent legal representation in civil
legal proceedings. Line 7 of the table
below displays the estimated number of
children who will receive independent
legal representation in civil legal
proceedings either directly, or on behalf
of a parent or relative caregiver in FY
2023 as 10,137 children. There is no
estimate for FY 2021 in the chart
because these costs were not claimed;
these will be new costs as a result of
finalizing this NPRM. We also provide
estimates for subsequent years: FYs
2024, 2025, 2027 and in 2032 the
estimated number of children is 63,482.
This is based on the implementation
level which is the percentage of
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children receiving independent legal
representation in foster care legal
proceedings who are projected to also
receive independent legal
representation in civil legal proceedings
in the year.
Line 8. National average title IV–E
administrative cost claim per child for
independent legal representation in civil
legal proceedings. Line 8 of the table
below displays that in FY 2021, we
assumed the average FFP claim per
child (candidates and IV–E FC)
receiving independent legal
representation in civil proceedings to be
$1,262. We also provide estimates for
these costs for the following subsequent
years: FYs 2023, 2024, 2025, 2027 and
in 2032, we estimate the average FFP
claim per child to be $1,621. These cost
estimates were derived from data
provided by the ‘‘Detroit Model’’ legal
services program in which legal
representation in civil issues for child
welfare clients was calculated as an
average yearly amount of $2,524 gross
($1,262 50 percent FFP title IV–E
Federal share) per client. We used the
Detroit model project because we do not
have current title IV–E administrative
cost claims reported on the Form CB–
496 for civil proceedings that we can
use for an estimate of the cost of
providing independent legal
representation in civil legal proceedings
in this NPRM. This is the only program
model known to us providing civil legal
representation in pre-petition cases for
which average cost data is available,
thus the only way for us to estimate
these costs (Detroit Center for Family
Advocacy Pilot Evaluation report July
2009–June 2012; Sankaran, Vivek. Case
Closed: Addressing Unmet Legal Needs
and Stabilizing Families. M.L. Raimon,
co-author. Center for the Study of Social
Policy [2014] [Detroit model project]).
Pursuant to the Uniform
Administrative Requirements, Cost
Principles, and Audit Requirements for
HHS Awards, title IV–E agencies must,
among other things, ensure costs are
reasonable (45 CFR 1335.30(i) applying
45 CFR 75.404). A cost is reasonable if,
in its nature and amount, it does not
exceed that which would be incurred by
a prudent person under the
circumstances prevailing at the time the
decision was made to incur the cost.
The title IV–E agency must describe
how the administrative costs of
allowable legal representation are
allocated in a public assistance cost
allocation plan that is reviewed and
approved by HHS (45 CFR 1355.30(k)
applying 45 CFR 95.507). To the extent
that a title IV–E agency contracts with
another public or private agency to
provide or assist in title IV–E allowable
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activities, the title IV–E agency may
claim reasonable costs consistent with
their cost allocation plan and supported
by a written agreement that, among
other things, includes the specific
service(s) being purchased, and the
basis for billing (45 CFR 95.507(b)(6)).
Many title IV–E agencies already have
contracts with attorneys providing
independent legal representation in
foster care related hearings on behalf of
children and their parent(s) where the
child is either a candidate for or in
foster care. Such agencies have
experience identifying reasonable rates
and appropriate categories of costs for
allowable legal representation. We
encourage title IV–E agencies to share
comments on these experiences. We
also specifically request comments from
the public on what a prudent person
under the circumstances would
reasonably pay for attorney fees in civil
legal proceedings.
Line 9. Federal costs of independent
legal representation in civil legal
proceedings. Line 9 of the table below
provides the estimated Federal
administrative costs at 50 percent FFP
for independent legal representation in
civil legal proceedings for candidates
and IV–E FC. These costs were
calculated by multiplying the expected
average monthly caseload (line 7) by the
expected average annual claim per child
(line 8). We provide estimated Federal
costs of $13,393,972 for FY 2023 and in
subsequent years: FYs 2024, 2025, 2027
and in 2032 the estimated Federal cost
is $102,928,630.
Line 10. Non-Federal costs of
independent legal representation in civil
legal proceedings. Line 10 provides the
estimated non-Federal share of
administrative costs for independent
legal representation in civil legal
proceedings for candidates and IV–E FC,
which is 50 percent of the total on line
11. This number is the same as line 9
because the FFP rate used in these
estimates is 50 percent, thus we
estimate the costs for Federal and nonFderal to be the same. We provide
estimated non-Federal costs of
$13,393,972 beginning in FY 2023 and
in subsequent FYs: 2024, 2025, 2027
and in 2032 the estimated non-Federal
cost is $102,928,630. There is no
estimate for FY 2021 in the chart
because these costs were not claimed;
these will be new costs as a result of
finalizing this NPRM.
Line 11. Total Federal and nonFederal cost of independent legal
representation in civil legal proceedings.
Line 11 displays the annual estimated
total (Federal + non-Federal) costs for
independent legal representation for
candidates and IV–E FC in civil legal
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Fmt 4702
Sfmt 4702
proceedings. This is the sum of lines 9
and 10. We estimate these total costs
beginning in FY 2023 as $26,787,943
and in subsequent FYs: 2024, 2025,
2027 and in 2032, the estimate is
$205,857,260. There is no estimate for
FY 2021 in the chart because these costs
were not claimed; these will be new
costs as a result of finalizing this NPRM.
Line 12. Number of Indian children
on whose behalf a tribe may receive
legal representation in foster care legal
proceedings (candidates and IV–E FC).
Line 12 of the table below provides the
estimated number of Indian children for
whom legal representation may be
received by their tribe in FC
proceedings. In FY 2021 (baseline)
candidates and IV–E FC are not listed
since this administrative cost was not
available. We estimate that the total
number, beginning in 2023 and
subsequent FYs 2024, 2025, 2027 and
2032 is 3,342 for candidates and 7,814
for IV–E FC.
Line 13. National average FFP claim
per child (candidates and IV–E FC) for
tribal representation in foster care legal
proceedings. Line 13 of the table below
provides the average title IV–E claim per
child for the tribal representation in
foster care proceedings. In FY 2021
(baseline), the average title IV–E
administrative cost claim per child
receiving legal representation in foster
care legal proceedings was $1,262
(estimated) for title IV–E candidates and
$2,709 (actual) for children in title IV–
E foster care. We estimate the total per
child claim for subsequent FYs 2023,
2024, 2025, 2027, and 2032 is
$1,621(candidates) and $3,481 (IV–E
FC).
Line 14. Average FFP for IV–E FC and
candidate itemized for tribal
representation in foster care legal
proceedings. Line 14 of the table below
displays estimates for the average
annual claims for children whose tribe
is receiving legal representation. In FY
2021, there was no actual FFP for
children receiving tribal legal
representation in foster care legal
proceedings. For subsequent FYs 2023,
2024, 2025, 2027 and 2032 the
estimated cost is $5,419,446
(candidates) and $27,200,314 (IV–E FC).
Line 15. Total FFP for tribal
representation in foster care legal
proceedings. Line 15 of the table below
provides the total FFP for tribal
representation in foster care legal
proceedings by multiplying line 12 for
candidates by line 13 for IV–E FC. For
FY 2021 (base year), there was no actual
FFP for children receiving tribal legal
representation in foster care legal
proceedings. Estimates of the total
annual FFP for these costs in FYs 2023,
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2024, 2025, 2027 and 2032 is
$32,619,760.
Line 16. Total non-Federal cost for
tribal representation in foster care legal
proceedings. Line 16 provides the
estimated non-Federal share of
administrative costs for tribal legal
representation in foster care legal
proceedings for candidates and IV–E FC
by multiplying line 1 by line 2, which
is 50 percent of the total on line 17. This
number is the same as line 15 because
the FFP rate used in these estimates is
50 percent, therefore we estimate the
costs for Federal and non-Federal to be
the same. We provide estimated nonFederal costs of $2,641,921 beginning in
FY 2023 and in subsequent FYs 2024,
2025, 2027 and 2032, the estimated nonFederal cost is $32,619,760. There is no
ACF understands that representation
for a child’s tribe in foster care legal
proceedings in practice may not always
be by an attorney. Some states allow
non-attorneys to represent a child’s tribe
if they are a member of and authorized
to represent the child’s tribe. We are
considering allowing the cost of a nonattorney to represent a child’s tribe
when it is necessary for the
administration of the title IVE plan. We
are seeking comments on this proposal
and are especially interested in any
evidence that non-attorneys would
effectively provide the information that
courts need, and any recommendations
for how ACF would ensure that nonattorneys adequately represent the
child’s tribe.
Year
2021
(Baseline)
2023
2024
2025
2027
(Year 5)
2032
(Year 10)
1. National number of children receiving legal representation in foster
care legal proceedings (candidates
and IV–E FC).
2. National average FFP claim per
child (candidates and IV–E for foster care legal proceedings.
3. Average FFP for IV–E FC and candidate itemized for foster care legal
proceedings.
10,447 (candidates), 26,092
(IV–E FC).
13,201 (candidates), 32,876
(IV–E FC).
15,973 (candidates), 39,779
(IV–E FC).
19,328 (candidates), 48,133
(IV–E FC).
24,886 (candidates), 61,976
(IV–E FC).
29,525 (candidates), 73,530
(IV–E FC).
$742 (candidates),
$2,709 (IV–E
FC).
$7,777,621 (candidates),
$70,689,345
(IV–E FC).
$78,466,966 .........
$777 (candidates),
$2,837 (IV–E
FC).
$10,260,393 (candidates),
$93,254,798
(IV–E FC).
$103,515,191 .......
$795 (candidates),
$2,902 (IV–E
FC).
$12,700,622 (candidates), $
115,433,586
(IV–E FC).
$128,134,209 .......
$813 (candidates),
$2,969 (IV–E
FC).
$15,721,212 (candidates),
$142,887,156
(IV–E FC).
$158,608,368 .......
$851 (candidates),
$3,107 (IV–E
FC).
$21,184,501 (candidates),
$192,541,977
(IV–E FC).
$213,726,479 .......
$954 (candidates),
$3,481 (IV–E
FC).
$28,160,009 (candidates),
$255,941,062
(IV–E FC).
$284,101,071.
$78,466,966 .........
$103,515,191 .......
$128,134,209 .......
$158,608,368 .......
$213,726,479 .......
$284,101,071.
$156,933,932 .......
$207,030,382 .......
$256,268,417 .......
$317,216,735 .......
$427,452,958 .......
$568,202,142.
N/A .......................
10,137 ..................
18,398 ..................
25,972 ..................
42,997 ..................
63,482.
$1,262 (baseline)
$1,321 ..................
$1,352a ................
$1,383 ..................
$1,447 ..................
$1,621.
N/A .......................
$13,393,972 .........
$24,869,190 .........
$35,914,468 .........
$62,222,311 .........
$102,928,630.
N/A .......................
$13,393,972 .........
$24,869,190 .........
$35,914,468 .........
$62,222,311 .........
$102,928,630.
N/A .......................
$26,787,943 .........
$49,738,380 .........
$71,828,936 .........
$124,444,623 .......
$205,857,260.
N/A .......................
332 (candidates),
777 (IV–E FC).
1,007 (candidates), 2,353
(IV–E FC).
1,694 (candidates), 3,961
(IV–E FC).
2,420 (candidates), 5,657
(IV–E FC).
3,342 (candidates), 7,814
(IV–E FC).
N/A .......................
$1,321 (can$1,352 (can$1,383 (can$1,447 (can$1,621 (candidates), $
didates), $
didates), $
didates), $
didates), $
2,837 (IV–E FC).
2,902 (IV–E FC).
2,969 (IV–E FC).
3,107 (IV–E FC).
3,481 (IV–E
FC).
$438,929 (can$1,360,543 (can$2,342,923 (can$3,501,709 (can$5,419,446 (candidates),
didates),
didates),
didates),
didates),
$2,202,993 (IV–
$6,828,594 (IV–
$11,759,180
$17,575,152
$27,200,314
E FC).
E FC).
(IV–E FC).
(IV–E FC).
(IV–E FC).
$2,641,921 ........... $8,189,137 ........... $14,102,103 ......... $21,076,861 ......... $32,619,760.
4. Total FFP (line 1 × line 2 for combined IV–E FC child and candidate)
for foster care legal proceedings.
5. Total non-Federal cost (line 1 × line
2 for combined IV–E FC and candidates) for foster care legal proceedings.
6. Total cost for foster care legal proceedings (line 4 + line 5).
7. Number of children receiving legal
representation in civil legal proceedings.
8. National average FFP claim per
child for civil legal proceedings.
9. Total FFP for civil legal proceedings (line 7 × line 8).
10. Total non-Federal costs for civil
legal proceedings (line 7 × line 8).
11. Total Federal + non-Federal costs
for civil legal proceedings (line 9 +
line 10).
12. Number of children whose tribe
may receive legal representation in
foster care legal proceedings (candidates and IV–E FC).
13. National average FFP claim per
child (candidates and IV–E FC) for
ta tribe in foster care legal proceedings.
14. Average FFP for IV–E FC and
candidate itemized for a tribe in foster care legal proceedings.
ddrumheller on DSK120RN23PROD with PROPOSALS1
estimate for FY 2021 in the chart
because these costs were not claimed;
these will be new costs as a result of
finalizing this NPRM.
Line 17. Total cost for foster care legal
proceedings. Line 17 displays the
annual estimated total Federal and nonFederal costs for tribal legal
representation for candidates and IV–E
FC in foster care legal proceedings. This
is the sum of lines 15 and 16. We
estimate these total costs beginning in
FY 2023 as $5,283,842 and in
subsequent FYs 2024, 2025, 2027 and
2032, the estimate is $65,239,520. There
is no estimate for FY 2021 in the chart
because these costs were not claimed;
these will be new costs as a result of
finalizing this NPRM.
N/A .......................
15. Total FFP (line 12 × line 13 for
N/A .......................
combined IV–E FC child and candidate) for a tribe in foster care
legal proceedings.
16. Total non-Federal cost (line 12 ×
N/A .......................
line 13 for combined IV–E FC and
candidates) for a tribe in foster care
legal proceedings.
17. Total cost for a tribe in foster care N/A .......................
legal proceedings (line 15 + line 16).
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$2,641,921 ...........
$8,189,137 ...........
$14,102,103 .........
$21,076,861 .........
$32,619,760.
$5,283,842 ...........
$16,378,274 .........
$28,204,206 .........
$42,153,722 .........
$65,239,520.
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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. Preliminarily, 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 PROPOSALS1
Category
Year dollars
Federal Budget Transfers (annualized) ...................................
$119
98
From/To ...................................................................................
From: Federal Government
Other Transfers (annualized) ...................................................
119
98
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
the relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian tribes and
either impose substantial direct
compliance costs on tribes or preempt
state law. Similarly, ACF’s Tribal
Consultation Policy says that
consultation is triggered for a new rule
adoption that significantly affects tribes,
meaning the new rule adoption has
substantial direct effects on one on more
Indian Tribes, on the amount or
duration of ACF program funding, on
the delivery of ACF programs or
services to one or more Indian tribes, or
on the distribution of power and
responsibilities between the Federal
Government and Indian tribes. This
final rule does not meet either standard
for consultation. Since it is the option
of the tribal title IV–E agency whether
or not to claim FFP for independent
legal representation in foster care and
other civil legal proceedings necessary
to carry out the requirements in the
agency’s title IV–E foster care plan,
Executive Order 13175 does not apply.
However, we plan to conduct tribal
consultation during the public comment
period. We believe that tribes will have
great interest in our proposal to claim
FFP for the administrative costs of legal
representation for an attorney
representing an Indian child’s tribe
when the child’s tribe intervenes in
specified state court proceedings.
Jeff Hild, Acting Assistant Secretary of
the Administration for Children &
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2021
2021
2021
2021
Administrative costs, Adoption and
foster care, Child welfare, Fiscal
requirements (title IV–E), Grant
programs—social programs, Statewide
information systems.
(Catalog of Federal Domestic Assistance
Program Number 93.658, Foster Care
Maintenance; 93.659, Adoption Assistance;
93.645, Child Welfare Services—State
Grants).
Dated: September 21, 2023.
Xavier Becerra,
Secretary, Department of Health and Human
Services.
For the reasons set forth in the
preamble, ACF proposes to amend 45
CFR part 1356 as follows:
PART 1356—REQUIREMENTS
APPLICABLE TO TITLE IV–E
1. The authority citation for part 1356
continues to read as follows:
■
Authority: 42 U.S.C. 620 et seq., 42 U.S.C.
670 et seq., 42 U.S.C. 1302.
2. Amend § 1356.60 by revising
paragraphs (c)(2)(viii) and (x) and
adding paragraphs (c)(2)(xi) and (c)(4) to
read as follows:
■
Fiscal requirements (title IV–E).
*
*
*
*
(c) * * *
(2) * * *
(viii) Rate setting;
*
*
*
*
*
(x) Costs related to data collection and
reporting; and
(xi) Costs related to legal
representation described in paragraph
(c)(4) of this section.
*
*
*
*
*
PO 00000
Frm 00071
Fmt 4702
Sfmt 4702
7
3
10
10
7
3
10
10
To: children eligible for title IV–
E foster care
List of Subjects in 45 CFR Part 1356
*
Period covered
(years)
To: children eligible for title IV–
E foster care
Families, approved this document on
June 13, 2023.
§ 1356.60
Discount rate
(%)
(4) The following are allowable
administrative costs of legal
representation:
(i) Legal representation in foster care
proceedings provided by an attorney
representing the title IV–E agency or any
other public agency which has an
agreement in effect under which the
other agency has placement and care
responsibility of a title IV–E eligible
child pursuant to 472(a)(2)(B)(ii) of the
Act;
(ii) Independent legal representation
provided by an attorney representing a
child in title IV–E foster care, a child
who is a candidate for title IV–E foster
care, the child’s parent(s), and the
child’s relative caregiver in foster care
and other civil legal proceedings as
necessary to carry out the requirements
in the agency’s title IV–E foster care
plan. Independent legal representation
in civil proceedings includes
facilitating, arranging, brokering,
advocating, or otherwise linking clients
with providers and services as
identified in the child’s case plan
pursuant to sections 422, 471(a)(16), and
475 of the Act; and
(iii) Legal representation provided by
an attorney representing an Indian
child’s tribe (as defined by 25
U.S.C.1903(5)), when the child’s tribe
intervenes in any state court proceeding
for the foster care placement or
termination of parental rights of an
Indian child who is in title IV–E foster
care or an Indian child who is a
candidate for title IV–E foster care.
*
*
*
*
*
[FR Doc. 2023–20932 Filed 9–27–23; 8:45 am]
BILLING CODE P
E:\FR\FM\28SEP1.SGM
28SEP1
]]>Agencies
[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Proposed Rules]
[Pages 66769-66780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20932]
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1356
RIN 0970-AC89
Foster Care Legal Representation
AGENCY: Children's Bureau (CB), Administration on Children, Youth and
Families (ACYF), Administration for Children and Families (ACF),
Department of Health and Human Services (HHS).
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: ACF proposes to allow a title IV-E agency to claim Federal
financial participation (FFP) for the administrative cost of an
attorney providing: legal representation in foster care proceedings of
a title IV-E agency or any other public agency or tribe that has an
agreement in effect under which the other agency has placement and care
responsibility of a title IV-E eligible child; independent legal
representation of a child who is either a candidate for title IV-E
foster care, or in title IV-E foster care (hereafter, referred to as a
child ``who is eligible for title IV-E foster care''), the child's
parent(s), and the child's relative caregiver(s) in foster care and
other civil legal proceedings when such legal representation is found
necessary by the Secretary to carry out the requirements in the title
IV-E agency's title IV-E foster care plan; and legal representation of
an Indian child's tribe, when the child's tribe intervenes in any state
court proceeding for the foster care placement or termination of
parental rights of an Indian child who is in title IV-E foster care or
an Indian child who is a candidate for title IV-E foster care when such
legal representation is found necessary by the Secretary to carry out
the requirements in the title IV-E agency's title IV-E foster care
plan.
DATES: In order to be considered, ACF must receive written comments on
this NPRM on or before November 27, 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 Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include [docket number and/
or RIN number] in subject line of the message.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (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) 205-8618. Telecommunications Relay
users may dial 711 first. Email inquiries to [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 for which the Secretary is responsible under the Act. Section
474(a)(3) of the Act authorizes Federal reimbursement for title IV-E
foster care program administrative costs, which are defined as costs
``found necessary by the Secretary for the provision of child placement
services and for the proper and efficient administration of the State
[[Page 66770]]
[title IV-E] plan.'' This authorization applies to an Indian tribe,
tribal organization, or tribal consortium that has an approved title
IV-E plan, in the same manner as it applies to states.
II. Background
Many families that come to the attention of a child welfare agency
are in the midst of or recovering from familial, health, housing, or
economic challenges or crises. These obstacles can impede a family's
ability to provide a safe and stable environment for their children.
Access to independent legal representation can help stabilize families
and reduce the need for more formal child welfare system involvement,
including foster care. For families with children that have been placed
in foster care, independent legal representation can expedite
reunification and improve permanency or help provide access to needed
supports for youth transitioning out of the child welfare system. For
Indian children that have been placed in foster care, and their
families, early representation of an Indian child's tribe in foster
care proceedings promotes stability for the child by minimizing
unnecessary separation of children and their parents, and by maximizing
placements of the child with extended family and other preferred
placements.
The Indian Child Welfare Act (ICWA) and regulations allow an Indian
child's tribe to intervene in any state court proceeding for the foster
care placement of, or termination of parental rights to, an Indian
child (25. U.S.C. 1911(c)). ``Indian child,'' means any unmarried
person who is under age eighteen and is either a member of an Indian
tribe or is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe (25 U.S.C. 1903(4)). An
``Indian child's tribe'' means the Indian tribe in which an Indian
child is a member or eligible for membership or, in the case of an
Indian child who is a member of or eligible for membership in more than
one tribe, the Indian tribe with which the Indian child has the more
significant contacts (25 U.S.C. 1903(5)).
The regulation at 45 CFR 1356.60(c) details cost-sharing
requirements for the Federal and non-Federal share of title IV-E foster
care program expenditures for the cost of administrative activities. A
title IV-E agency may claim FFP at the rate of 50 percent for allowable
title IV-E foster care administrative costs. A title IV-E agency may
also claim FFP for allowable administrative costs incurred by any other
public agency or tribe which has an agreement in effect under which the
other agency has placement and care responsibility of a title IV-E
eligible child pursuant to 472(a)(2)(B)(ii) of the Act. Another
``public agency'' is child placing agency authorized by state/tribal
law to operate a program of services to children and families, with
supervision by the title IV-E agency (CWPM 8.1G #1). Examples of other
public agencies may be found in section G of the Child Welfare Policy
Manual, and could include the state/tribal juvenile justice agency, a
court, or state/tribal mental health agency. The regulation at Sec.
1356.60(c)(2) provides examples of allowable title IV-E foster care
administrative expenditures that are necessary for the administration
of the title IV-E agency's plan, such as preparation for and
participation in judicial determinations, referral to services,
development of the case plan, case reviews, and case management and
supervision.
ACF policy historically allowed title IV-E agencies to claim FFP
for the foster care administrative costs of ``preparation for and
participation in judicial determinations'' as described in Sec.
1356.60(c)(2)(ii), only for the title IV-E agency's (and if applicable,
the tribe or other public agency's) legal representation. However, in
2019, ACF revised the policy to allow title IV-E agencies to also claim
FFP for the administrative costs of independent legal representation
provided by attorneys representing children who are candidates for
title IV-E foster care, children who are in title IV-E foster care
(hereafter, ``child who is eligible for title IV-E foster care'' refers
to both a child who is a candidate and child who is in foster care),
and the children's parent(s) in all stages of foster care legal
proceedings (Child Welfare Policy Manual [CWPM] 8.1B #30, 31, and 32).
This policy was revised to ensure that reasonable efforts are made to
prevent removal and finalize the permanency plan; and parents and youth
are engaged in and complying with case plans. A ``candidate'' for title
IV-E foster care is a child who is potentially eligible for title IV-E
foster care maintenance payments and is at serious risk of removal from
home as evidenced by the title IV-E agency either pursuing the child's
removal from the home or making reasonable efforts to prevent such
removal (section 472(i) of the Act). Further, the agency must document
the child's candidacy for title IV-E foster care maintenance payments
through one of the three acceptable methods identified in the Child
Welfare Policy Manual, such as a case plan. (CWPM 8.1D #2) A child is
not considered a candidate for title IV-E foster care when the title
IV-E agency has no formal involvement with the child or simply because
the child has been described as ``at risk'' due to circumstances such
as social or interpersonal problems or a dysfunctional home environment
(CWPM 8.1D). This policy change was well received and generated
positive interest from title IV-E agencies and child welfare and legal
stakeholders.
This NPRM proposes to codify and expand the policy in CWPM 8.1B
#30, 31, and 32. Recent research, as described in the Section-by-
Section, demonstrates that providing independent legal representation
early in foster care proceedings and other civil legal proceedings can
help prevent children from entering foster care, and for youth already
in foster care, can improve the rate of reunification and result in
more permanent outcomes for the child and the family. Therefore, this
NPRM proposes that providing independent legal representation to a
child who is eligible for title IV-E foster care, their parent(s), and
their relative caregiver(s) to prepare for and participate in civil
legal proceedings is an allowable administrative cost when necessary to
carry out the requirements in the agency's title IV-E foster care plan
in accordance with section 471(a) of the Act.
III. Section-by-Section Discussion of Proposed Regulatory Changes
Section 1356.60
ACF proposes to revise Sec. 1356.60(c) to add a new paragraph (4)
providing examples of allowable administrative costs for legal
representation and add a new paragraph (c)(2)(xi) to include a
reference to paragraph (4).
In a new paragraph (4)(i), we propose to clarify that a title IV-E
agency may claim administrative costs for legal representation when
incurred by the title IV-E agency, or any other public agency or tribe
that has an agreement with the title IV-E agency for placement and care
responsibility of a title IV-E eligible child under section
472(a)(2)(B)(ii) of the Act in foster care proceedings. This proposal
is not new as regulations currently allow this cost under the example
of preparing for and participating in judicial determinations. We are
specifying this type of legal representation for agency attorneys as a
separate example of allowable costs and to make clear that it
encompasses public agencies and tribes that have an agreement under
section 472(a)(2)(B)(ii) of the Act with the title IV-E agency.
In a new paragraph (4)(ii), we propose that a title IV-E agency may
claim FFP for administrative costs of independent
[[Page 66771]]
legal representation provided by an attorney representing a child who
is eligible for title IV-E foster care, their parent(s), and their
relative caregiver(s), to prepare for and participate in foster care
and other civil legal proceedings necessary to carry out the
requirements in the agency's title IV-E foster care plan. We are also
proposing that legal representation in civil legal proceedings may
include facilitating, arranging, brokering, advocating, or otherwise
linking clients with providers and services as identified in the
child's case plan pursuant to section 475(1) of the Act. Consistent
with Children's Bureau policy, a title IV-E agency may claim title IV-E
administrative costs of paralegals, investigators, peer partners or
social workers that support an attorney providing such independent
legal representation to the extent that they are necessary to support
the attorney. Under title IV-E of the Act, the term ``parent(s)'' means
a biological or adoptive parent(s) or legal guardian(s), as determined
by applicable state or tribal law (section 475(2) of the Act). The term
``legal guardianship'' means a judicially created relationship between
child and caretaker (legal guardian) which is intended to be permanent
and self-sustaining as evidenced by the transfer to the caretaker of
the following parental rights with respect to the child: protection,
education, care and control of the person, custody of the person, and
decision making (section 475(7) of the Act). Therefore, this NPRM
proposes that title IV-E agencies may claim allowable administrative
costs of independent legal representation for a legal guardian(s) of a
child eligible for title IV-E foster care, if state or tribal law
considers a legal guardian(s) a parent(s), and consistent with Federal
law, such legal guardian(s) is intended to be the permanent caretaker
of the child.
Under this proposal, title IV-E agencies will also be allowed to
claim administrative costs for independent legal representation
provided to relative caregivers, even when those relative caregivers
are not a foster child's legal guardian. For purposes of claiming the
cost of independent legal representation provided to the relative
caregiver of a child who is eligible for title IV-E foster care, the
title IV-E agency may define the term ``relative.'' For example, a
title IV-E agency may define relative to include kin and ``fictive-
kin.''
Finally, in paragraph (c)(2) we propose to add a new paragraph (xi)
referencing the proposed new paragraph (4) to clarify that such legal
representation is an allowable administrative cost.
This NPRM proposes that the title IV-E agency may determine what
`independent' means for purposes of providing such legal
representation. However, at a minimum, such legal representation should
be provided by an attorney who: does not have a concurrent conflict of
interest, such as when the representation of one client will be
directly adverse to the lawyer's responsibilities to another client, a
former client or a third person; does not accept compensation for
representing a client from someone other than the client unless the
client gives informed consent; and there is no interference with the
lawyer's independence of professional judgment or with the client-
lawyer relationship.
Many families involved in the child welfare system encounter
barriers to accessing services that can help them overcome family,
health, or economic challenges or crises. Such challenges or crises may
include loss of employment, inadequate income, unstable housing or
homelessness, food insecurity, mental health and/or substance misuse
disorders, and family violence. These crises can impede a family's
ability to provide a safe and stable environment for their children
(ACYF-CB-IM-21-02, p.2; ACYF-CB-IM-21-06 p. 12), which can lead to
placement in foster care or delayed permanency when the family is not
prepared for a child to return home. For example, of all children that
entered foster care in Federal fiscal year (FY) 2021, 63 percent of
removals were related to neglect (including failure to provide adequate
food, clothing, shelter, and supervision or care by a person who is
responsible for the child's welfare). Nine percent were experiencing
housing issues at the time of removal (Adoption and Foster Care
Analysis and Reporting System (AFCARS) FY 2021 Report). In 2020, a
peer-reviewed journal article conducted a systematic search of peer-
reviewed studies conducted in the U.S. regarding the association of
housing stress with child maltreatment. The literature indicates
indicate that ``housing stress is associated with an increased
likelihood of caregiver or child self-reported maltreatment, child
protective services (CPS) reports, investigated and substantiated CPS
reports, out-of-home placements, and maltreatment death (Chandler CE,
Austin AE, Shanahan ME. Association of Housing Stress With Child
Maltreatment: A Systematic Review. Trauma Violence Abuse. 2022
Apr;23(2):639-659. doi: 10.1177/1524838020939136. Epub 2020 Jul 17.
PMID: 32677550; PMCID: PMC7855012).
Preventing a child from being removed from their home is critical
to a child's well-being because removal, even for a short period of
time, exposes the child to a range of trauma and stress (Sankaran,
Vivek. ``Using Preventive Legal Advocacy to Keep Children from Entering
Foster Care.'' Wm. Mitchell L. Rev. 40, (3): 1036-1047, 2014). A child
who is at risk of entering foster care has better outcomes when they
remain at home compared to when they are placed into foster care
(Joseph J. Doyle, Jr. ``Causal Effects of Foster Care: An Instrumental
Variables Approach.'' Children and Youth Services Review 35(7): 1143-
1151, 2013.).
Research demonstrates that providing independent legal
representation in foster care and other civil legal proceedings can
minimize some of these barriers that contribute to bringing families
with children at risk of entering foster care in contact with the child
welfare system and may help prevent children from entering foster care
(Sankaran, Vivek. ``Using Preventive Legal Advocacy to Keep Children
from Entering Foster Care.'' Wm. Mitchell L. Rev. 40, (3): 1036-1047,
2014). One recent study showed that when parents are represented by an
interdisciplinary law office with legal specialists to assist with
immigration, benefits, criminal, housing, or other concerns, children
placed in foster care were safely returned to their families about 43
percent more often in the first year, children's time in foster care
was reduced by nearly four months, and families were no more likely to
experience a subsequent substantiated report of maltreatment (Gerber,
Lucas A., Pang, Yuk C., Ross, Timothy, Guggenheim, Martin, Pecora,
Peter J., & Miller, Joel. ``Effects of an interdisciplinary approach to
parental representation in child welfare,'' Children and Youth Services
Review, Volume 102, 2019, Pages 42-55, ISSN 0190-7409, https://doi.org/10.1016/j.childyouth.2019.04.022).
Outcome data from legal service programs and pilot projects
demonstrate that providing independent legal representation to address
a family's civil legal issues results in a high success rate for
preventing children from entering foster care and for children who are
in foster care, expediting permanency (American Bar Association Center
on Children and the Law & National Council of Juvenile and Family Court
Judges. Supporting Early Legal Advocacy before Court Involvement in
Child Welfare Cases (March, 2021). For example:
The Detroit Center for Family Advocacy conducted a pilot
program to
[[Page 66772]]
provide independent legal representation to address civil legal issues
for families in which a child has been found abused or neglected.
Typically, lawyers filed for a restraining order, drafted a power of
attorney, filed for a guardianship, applied for public benefits, or
helped with special-education entitlements. Of the 55 families who were
caring for 110 children served, none of the children entered foster
care. (Detroit Center for Family Advocacy Pilot Evaluation report July
2009-June 2012; Sankaran, Vivek. Case Closed: Addressing Unmet Legal
Needs and Stabilizing Families. M.L. Raimon, co-author. Center for the
Study of Social Policy [2014] [Detroit model project])
Iowa Legal Aid is piloting an early representation program
for parents before petitions are filed. The program assists with
private guardianship, custody, protective orders, landlord/tenant
disputes, and appeals of denials of public benefits. Outcome data from
2018 show the program, in four counties, prevented over 100 children
from becoming court involved (Family Justice Initiative. Implementing
FJI System Attributes, Attribute 4: Timing of Appointment, 2020.; Iowa
Legal Aid. Parent Representation Project, undated.).
Legal Services of New Jersey has operated a pre-petition
representation program since 2018. The cases are referred by the child
welfare agency and typically involve representation around public
benefits and access to affordable housing, child support and custody
issues, and school-related issues. Outcome data indicate that by 2020,
the program had prevented 200 removals (Implementing FJI System
Attributes, Attribute 4: Timing of Appointment, 2020.).
The Washington Family Intervention Response to Stop Trauma
Clinic provides pre-petition representation to parents of substance-
exposed infants. The program often works with the parent to identify
and obtain temporary custody with relatives or others. Attorneys also
advocate around services for parents with substance use disorders,
including for programs that allow continued placement of the child with
the parent. While this is a small and relatively new program, initial
outcome data suggests the majority of the parents working with the
program can avoid a dependency filing and, thus, prevent the removal of
their children from the home (Family Justice Initiative, 2020; Wall,
Tonya and Adam Ballout. ``Using Legal Services to Keep Children in
Families: The F.I.R.S.T. Clinic.'' Children's Rights Litigation,
October 3, 2019.).
The Vermont Parent Representation Center provides legal
representation in civil matters in cases where a child faces a
significant risk of being removed from his or her home. In 78 percent
of cases, children did not enter foster care. In cases in which
children entered foster care, 50 percent went home to their families
expeditiously (VPRC's Performance Measures, Vermont Parent
Representation Center, Inc.) (Why VPRC Is Important to Vermont
Families, Vermont Parent Representation Center, Inc.).
Children's Law Center of California (CLC) provides pre-
court legal advocacy to expecting and parenting youth who have a
dependency case. Case managers and attorneys address issues such as
drug use, child trafficking and exploitation, mental health and
domestic violence. The project has successfully prevented filings in
cases involving domestic violence by counseling clients and helping
them obtain restraining orders once a referral was triggered.
Legal Aid Services of Oklahoma operates an early legal
advocacy project. In cases where the state will not reunify a child in
foster care because of domestic abuse, attorneys provide legal
representation in divorce, guardianship and landlord tenant issues. The
benefit of this early advocacy project is that it avoids removal of
children.
In New York, the Bronx Defenders provide legal
representation for parents in abuse and neglect cases in Bronx Family
Court, advocates for families during the child protection investigation
before a legal case is filed and advises pregnant women who are at risk
of child protection involvement. Attorneys advise parents of their
rights, accompany them to meetings and conferences with the
Administration for Children's Services, refer them to community-based
services, and work with parents to identify family supports.
Under the revision proposed in this NPRM, we specify that allowable
administrative costs of an attorney providing independent legal
representation in other civil legal proceedings may include
facilitating, arranging, brokering, advocating, or otherwise linking
clients with providers and services as identified in the child's case
plan. For example, a family may need to secure safe and stable housing
to prevent the unnecessary removal of a child from the home, or a youth
aging out of foster care may need access to stable housing to finalize
a case plan in support of their permanency goal as required by,
respectively, sections 471(a)(15) and 475(5)(H) of the Act. Allowable
civil legal representation may include preparing for or participating
in a legal proceeding to advocate with a housing authority to help a
family or a youth aging out of foster care secure a housing voucher,
appealing a denial of a housing voucher, or suing a landlord whose
housing has unsafe conditions in order to execute the child's case
plan.
Additional examples of legal representation in civil legal
proceedings that may be necessary to carry out the title IV-E foster
care plan include:
An attorney providing independent legal representation to
an eligible child/parent to prepare for and participate in a legal
proceeding to establish paternity when it is necessary to establish
title IV-E eligibility or meet the requirement for the agency to file
for termination of parental rights when a child has been in foster care
for 15 of the most recent 22 months (section 475(5)(E) of the Act).
An attorney providing independent legal representation to
an eligible child/parent/relative caregiver to prepare for and
participate in a legal proceeding to help a victim of family violence
obtain an order of protection against the abuser to maintain or secure
custody of their child(ren), secure stable housing, secure public
benefits, or establish custody or guardianship, when it is necessary to
meet the plan requirement to make reasonable efforts to prevent the
unnecessary removal of a child from the home or to finalize a case plan
in support of a child's permanency goal as required by section
471(a)(15) of the Act.
An attorney providing independent legal representation to
an eligible child/parent/relative caregiver to prepare for and
participate in a legal proceeding to enroll a child in school or access
education records when it is necessary to meet plan requirements to
ensure the educational stability of the child while in foster care,
taking into account the appropriateness of the current educational
setting and the proximity to the school in which the child is enrolled
at the time of placement in foster care; provide a copy of educational
records to a child at no cost at the time the child leaves foster care;
and ensure a child is enrolled in school per sections 471(a)(30) and
475(1)(G) and (5)(D) of the Act.
An attorney providing independent legal representation to
an eligible child to prepare for and participate in a proceeding to
establish a health care power of attorney, health care proxy, or other
similar document recognized under State law when it is necessary to
meet the requirement to develop a transition plan in the 90-day period
[[Page 66773]]
immediately prior to the date on which the child will age out of foster
care, per section 475(5)(H) of the Act.
An attorney providing independent legal representation to
an eligible child/parent/relative caregiver to prepare for and
participate in a proceeding to resolve inaccuracies in a youth's credit
report when it is necessary to meet the plan requirement to provide a
youth a copy of any consumer report each year until the child is
discharged from care, and provide assistance (including, when feasible,
from any court-appointed advocate for the child) in interpreting and
resolving any inaccuracies in the report, per section 475(5)(I) of the
Act.
An attorney providing independent legal representation to
an eligible child/parent/relative caregiver to prepare for and
participate in a proceeding to help a child obtain, change, or correct
official documentation when it is necessary to meet the plan
requirements to provide youth discharged from foster care an official
or certified copy of the United States birth certificate of the child,
a social security card issued by the Commissioner of Social Security,
health insurance information, a copy of the child's medical records,
and a driver's license or identification card issued by a State in
accordance with the requirements of section 202 of the REAL ID Act of
2005, and any official documentation necessary to prove that the child
was previously in foster care per sections 475(5)(I) and 471(a)(27) of
the Act.
An attorney providing independent legal representation to
an eligible child/parent/relative caregiver to prepare for and
participate in a proceeding to help a youth aging out of foster care
access public benefits, housing, health insurance, and education when
it is necessary to meet the plan requirement to develop a transition
plan 90-days immediately prior to the date on which the child will age
out of foster care, per section 475(5)(H) of the Act.
In a new paragraph (4)(iii), ACF proposes that a title IV-E agency
with placement and care responsibility for an Indian child may claim
FFP for administrative costs of legal representation provided by an
attorney representing an Indian child's tribe (as defined by 25 U.S.C.
1903(5)), when the child's tribe intervenes in any state court
proceeding for the foster care placement or termination of parental
rights of an Indian child who is in title IV-E foster care or an Indian
child who is a candidate for title IV-E foster care when such legal
representation is found necessary by the Secretary to carry out the
requirements in the title IV-E agency's title IV-E state plan. The ICWA
was passed by Congress in 1978 to address the long history of failing
``to recognize the essential tribal relations of Indian people and the
cultural and social standards prevailing in Indian communities and
families.'' (25 U.S.C. 1901(5)). ICWA protects the ``best interests of
Indian children and promotes the stability and security of Indian
tribes and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture, and by providing for
assistance to Indian tribes in the operation of child and family
service programs.'' (25 U.S.C. 1902).
As one tribal leader told Congress, tribes cannot long survive as
``self-governing'' communities if they cannot pass their ``heritage''
on to the next generation. Holyfield at 34 (citation omitted). Congress
thus recognized that, by severing that connection to future
generations, the breakup of Indian families threatens ``the continued
existence and integrity of Indian tribes.'' 25 U.S.C. 1901(3). The
Federal Government has an interest in ensuring that Indian tribes,
vested with a statutory right to intervene in state foster care
placement proceedings in accordance with 25 U.S.C. 1911(c), have legal
representation to preserve and protect the continued existence and
integrity of Indian tribes. As the Supreme Court noted in a case
interpreting ICWA, ``Congress [ ] found that the breakup of Indian
families harmed not only Indian children and their parents, but also
their tribes.'' Mississippi Band of Choctaw Indians v. Holyfield, 490
U.S. 30 at 33-34 (1989).
This proposal supports the goal of tribal self-governance by
supporting Indian families, both by minimizing unnecessary separations
of Indian children from their parents and by maximizing their placement
with extended family, other tribal members, or other tribal families
when they cannot remain with their parents. It is well documented that
for Indian children who have been placed in foster care, and their
families, early representation of an Indian child's tribe in foster
care placement proceedings promotes stability for the child by
minimizing unnecessary separation of children and their parents, and by
maximizing placements of the child with extended family and other
preferred placements (Frequently Asked Questions Bureau of Indian
Affairs Final Rule: Indian Child Welfare Act (ICWA) Proceedings, June
17, 2016).
The information provided by the tribe's attorney provides the
cultural and social standards of the child's tribe that are necessary
for the court to make essential determinations that reasonable efforts
were made as required under the title IV-E plan. For example, the Act
requires the court to determine whether the agency made reasonable
efforts to finalize a permanency plan. The tribal attorney's
representation of the cultural and social standards for family
connection, reunification and what permanency looks like in the child's
tribe, may be necessary to finalize the permanency plan for an Indian
child. For example, if adoption is the permanency plan for an Indian
child, the tribal attorney can provide information on customary
adoption, which ensures ``the same stability and permanence of
traditional adoption without terminating parental rights.'' As with all
allowable administrative costs, it is the option of the title IV-E
agency with placement and care responsibility of the child whether or
not to implement this option to claim FFP for this purpose.
ACF is making this proposal because legal representation provided
by an attorney to an Indian child's tribe intervening in state court
proceedings as described above, would be an allowable administrative
cost necessary for the proper and efficient administration of the title
IV-E plan when it fulfills a specific title IV-E plan requirement. Such
representation also avoids unintended consequences adverse to a child's
interests, such as loss of tribal membership and benefits (ICWA
Compliance Task Force Report to the California Attorney General's
Bureau of Children's Justice. 2017).
Equity Impact
This NPRM is consistent with the administration's priority of
advancing equity for those historically underserved and adversely
affected by persistent poverty and inequality (Executive Order 13985,
Advancing Racial Equity and Support for Underserved Communities Through
the Federal Government [Jan. 20, 2021]). Research well-documents the
overrepresentation of certain racial and ethnic groups in foster care
relative to their representation in the general population. African
American and American Indian or Alaska Native children are at greater
risk than other children of being confirmed for maltreatment and placed
in out-of-home care. They stay in foster care longer and have disparate
outcomes. For example, they are less likely to reunify with their
families (Child Welfare Information Gateway. (2021). Child welfare
practice
[[Page 66774]]
to address racial disproportionality and disparity. U.S. Department of
Health and Human Services, Administration for Children and Families,
Children's Bureau. https://www.childwelfare.gov/pubs/issue-briefs/racialdisproportionality/). Access to legal representation for an
Indian child's tribe promotes equity for those historically and
adversely affected by inequality by minimizing unnecessary separation
of children and their parents, and by maximizing placements of the
child with extended family, within the tribal community, and other
preferred placements. Research also documents the overrepresentation of
children and parents with disabilities in foster care relative to their
representation in the general population. As many as 60 percent of
children in foster care have disabilities. Parents with disabilities
are more likely than nondisabled parents to have child welfare system
involvement. Children with disabilities are institutionalized at higher
rates and for longer periods of time. Children of parents with
disabilities have higher out-of-home placement than other children.
Studies have also found disabled parents have high rates of termination
of parental rights (Albert SM, Powell RM. Supporting disabled parents
and their families: perspectives and recommendations from parents,
attorneys, and child welfare professionals. J Public Child Welf.
2020;15(5):529. doi: 10.1080/15548732.2020.1751771. PMID: 37220548;
PMCID: PMC10202498.).
Access to independent legal representation early in foster care and
other civil legal proceedings necessary to carry out the requirements
in the agency's title IV-E foster care plan may prevent children of
color from entering foster care. For children in foster care, it may
increase the rate of reunification and provide a quicker timeframe for
achieving permanency. For young adults aging out of foster care, such
legal representation may provide access to services and supports needed
to achieve permanency and long-term stability.
This proposed change can also help low-income families adversely
affected by persistent poverty who are struggling with unemployment,
inadequate income, unstable housing, evictions or homelessness, and
food insecurity when confronted with potential removal of a child from
the home, or when a relative is caring for a child in their home.
According to a 2017 study, 71 percent of low-income households
experienced at least one civil legal problem in the previous year,
including problems with health care, housing conditions, disability
access, veterans' benefits, and domestic violence. Of the low-income
households reporting civil legal problems, 86 percent received
inadequate or no legal help; (Washington, D.C.: The University of
Chicago for Legal Services Corporation, 2017). As previously explained,
studies also show that when a child is removed from the home, having
access to legal representation not only for child welfare proceedings
but also for other civil legal issues earlier in a case can improve the
rate of reunification, halve the amount of time needed to secure legal
guardianship or adoption, and result in more permanent outcomes for the
child and the family (Thornton, Elizabeth, & Gwin, Betsy. High-Quality
Legal Representation for Parents in Child Welfare Cases Results in
Improved Outcomes for Families and Potential Cost Savings. 46 Fam. L.Q.
139 (2012)). That means that parents without independent legal
representation in child welfare proceedings and in other civil legal
proceedings are at a disadvantage in having their children returned to
them. Therefore, providing families adversely affected by poverty with
independent legal representation in foster care and other civil legal
proceedings necessary to carry out the requirements in the agency's
title IV-E foster care plan may improve outcomes related to
reunification and permanency.
In addition, access to legal representation for an Indian child's
tribe promotes equity for those historically and adversely affected by
inequality by minimizing unnecessary separation of children and their
parents, and by maximizing placements of the child with extended
family, within the tribal community, and other preferred placements.
IV. Regulatory Process Matters
Regulatory Planning and Review Executive Order 12866 and Executive
Order 13563
Executive Orders (E.O.s) 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). E.O.
13563 is supplemental to, and reaffirms the principles, structures, and
definitions governing regulatory review as established in E.O. 12866,
as amended by Executive Order 14094, emphasizing the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. Section 3(f) of E.O. 12866, as
modified by 14094, defines ``a significant regulatory action'' as an
action that is likely to result in a rule (1) having an annual effect
on the economy of $200 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; (2) creating serious
inconsistency or otherwise interfering with an action taken or planned
by another agency; (3) materially altering the budgetary impacts of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raising legal or policy
issues for which centralized review would meaningfully further the
President's priorities, or the principles set forth in the Executive
order. This proposed rule is a significant rule and the Regulatory
Impact Analysis for this proposed rule identifies economic impacts that
exceed the threshold for significance under section 3(f)(1) of
Executive Order 12866. The estimated cost and transfer impacts of this
regulatory proposal are provided below. As described in the Section-by-
Section discussion above, providing legal representation in foster care
proceedings and other civil legal proceedings minimize barriers that
contribute to bringing families with children at risk of entering
foster care in contact with the child welfare system and may help
prevent children from entering foster care. For youth already in foster
care, such legal representation can improve the rate of reunification
resulting in more permanent outcomes for the child and the family. For
young adults transitioning out of foster care, such legal
representation may provide access to services and supports needed to
achieve permanency and for long-term stability.
Alternatives Considered: In 2019, ACF revised the Child Welfare
Policy Manual to allow title IV-E agencies to claim FFP for the
administrative costs of independent legal representation provided by
attorneys representing children who are candidates for title IV-E
foster care, children who are in title IV-E foster care, and the
children's parent(s) in all stages of foster care legal proceedings. As
an alternative to this NPRM, we considered only codifying this policy
(see CWPM 8.1B #30, 31, and 32). However, this alternative would not
meet our goals for two reasons. First, the alternative would not allow
an agency to claim such costs in non-foster care civil legal
proceedings, meaning that an
[[Page 66775]]
agency could only continue using state/tribal or local funds for legal
representation in civil legal proceedings. As described in the Section-
by-Section, allowing administrative costs for legal representation in
civil legal proceedings can help prevent children from entering foster
care, and for youth already in foster care, can improve the rate of
reunification and result in more permanent outcomes for the child and
the family. Second, the alternative would only allow independent legal
representation for the child's parent(s) and not the child's relative
caregiver(s) as proposed. However, such legal representation for the
growing number of relative caregivers, who often lack advance
preparation and struggle with similar legal barriers as a parent(s),
will reduce the need for more formal child welfare system involvement.
For children in foster care, providing legal representation to relative
caregivers would minimize some of the barriers that prevent a child
from being placed with a relative caregiver, enable more children to
maintain family connections, stabilize placements and result in more
permanent outcomes for the child and the family.
We also considered narrowly defining the activities an attorney may
perform to prepare for and participate in civil legal proceedings for
which a title IV-E agency may claim FFP. However, as described in the
Section-by-Section, legal service programs and pilot projects that
provided legal representation in a wide range of civil legal issues
demonstrated a high success rate for preventing children from entering
foster care and for children who are in foster care, expediting
permanency. Therefore, the proposal broadens ``preparation for and
participation in civil legal proceedings'' to include facilitating,
arranging, brokering, advocating, or otherwise linking clients with
providers and services as identified in the child's case plan.
We further considered whether the statute would permit the proposal
to be mandatory for title IV-E agencies. However, title IV-E does not
provide authority to require agencies to provide such representation or
to claim FFP for administrative costs. This is because title IV-E
agencies determine the costs necessary to administer the title IV-E
Foster Care Program, and in turn, Federal reimbursement for allowable
costs is permitted at 50 percent FFP.
Without this proposal codified, title IV-E agencies may continue to
claim FFP for the administrative costs of independent legal
representation provided by attorneys, representing children who are
eligible for title IV-E foster care, and the children's parent(s) only
in foster care legal proceedings.
Finally, as an alternative to this NPRM, we considered continuing
to not allow title IV-E agencies to claim FFP for the administrative
cost of independent legal representation provide by an Indian child's
tribe when the tribe intervenes in state court child welfare
proceedings. However, such legal representation promotes stability for
the child by minimizing unnecessary separation of children and their
parents, and by maximizing placements of the child with extended
family, tribal community, and other preferred placements.
Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA) (see 5 U.S.C. 605(b) as
amended by the Small Business Regulatory Enforcement Fairness Act)
requires Federal agencies to determine, to the extent feasible, a
rule's impact on small entities, explore regulatory options for
reducing any significant impact on a substantial number of such
entities, and explain their regulatory approach. 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 rulemaking will 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
document.
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 rulemaking does not
contain mandates that will impose spending costs on state, local, or
tribal governments in the aggregate, or on the private sector, in
excess of the threshold.
Congressional Review
The Congressional Review Act (CRA) allows Congress to review major
rules issued by Federal agencies before the rules take effect (see 5
U.S.C. 801(a)(1)(A)). The CRA defines a ``major rule'' as one that has
resulted, or is likely to result, in (1) an annual effect on the
economy of $100 million or more; (2) a major increase in costs or
prices for consumers; individual industries; Federal, State, or local
government agencies; or geographic regions; or (3) significant adverse
effects on competition, employment, investment, productivity, or
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets
(see 5 U.S.C. chapter 8). Based on our estimates of the impact of this
rulemaking, the Office of Information and Regulatory Affairs (OIRA) in
OMB anticipates that a final rule would be `major' under the CRA.
Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 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 Public Law 105-277,
because the action it takes in this NPRM will 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 rulemaking will 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. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this
[[Page 66776]]
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)). Collection
requirements for title IV-E foster care administrative costs are
currently authorized under OMB number 0970-0510 and include
administrative costs for independent legal representation. This action
does not include any new information collection requirements or changes
to existing information collection requirements.
Annualized Cost to the Federal Government
The Federal cost of the NPRM over ten fiscal years (2023-2032) is
estimated to be $2,936,285,160 ($2,099,154,001 (foster care legal
proceedings (FC)) + $631,567,527 (civil legal proceedings) +
$205,563,632 (FC proceedings in which an Indian child's tribe has
intervened). The combined total for Federal and agency costs over ten
fiscal years is estimated to be $5,872,570,319 ($4,198,308,001 for FC
legal proceedings + $1,263,135,054 for civil legal proceedings +
$411,127,264 for FC proceedings in which an Indian child's tribe has
intervened). It is optional for a title IV-E agency to claim the
administrative cost of providing independent legal representation in
foster care and civil legal proceedings to eligible children, their
parents, and their relative caregivers, and for legal representation to
an Indian child's tribe that intervenes in state court proceedings for
the foster care placement and termination of parental rights of an
eligible child.
Assumptions: ACF made several assumptions when calculating title
IV-E administrative costs:
FY 2021 title IV-E foster care administrative cost claims
are used as the base year amounts for projection purposes in this NPRM
and were sourced from Form CB-496 FC part 1. These are actual claims,
and not estimates. For the purposes of these burden estimates, we will
use the phrase ``candidates'' to refer to the number of children
claimed as title IV-E candidates and ``IV-E FC'' for children who are
in title IV-E foster care, the two populations of children (and their
parents and relative caregivers) to which the costs of this NPRM apply.
AFCARS data provides the number of title IV-E eligible
children who identified as ``American Indian\AK Native Alone Or In
Combination.'' We assume that this population of children is
potentially subject to ICWA requirements in state court foster care
placement proceedings. We further assume that each such Indian child's
tribe will intervene in state court foster care placement proceedings.
Title IV-E agencies may claim reimbursement for 50 percent
of the administrative costs to provide legal representation in foster
care proceedings, including those in which an Indian child's tribe has
intervened in state court foster care placement proceedings, and civil
proceedings, and the title IV-E agency must pay its share with state or
tribal funds. This non-Federal share will be an equal percentage of 50
percent because a title IV-E agency must match the same amount of funds
for which it seeks Federal reimbursement.
We assume an overall annual 1 percent caseload growth rate
in the population of candidates for title IV-E foster care and IV-E FC
for whom title IV-E administrative costs will be claimed in civil legal
proceedings and in FC legal proceedings, including those in which an
Indian child's tribe has intervened in state court foster care
placement proceedings. This is based on current title IV-E budgetary
projections.
We assume an annual FFP claims growth factor of 4.7
percent for FY 2023 and 2.3 percent from FY 2024 to FY 2032 for the
administrative costs of independent legal representation in FC and in
other civil legal proceedings. This is based on current title IV-E
budgetary projections of the percentage of change in title IV-E
administrative cost claims annually. We assume the calculated FY 2021
title IV-E foster care administration eligibility rate for children
classified as American Indian\AK Native Alone Or In Combination will
remain unchanged for the ten FY (FYs 2023-2032) project period.
An implementation level is used in the calculations for
the chart below as an estimated projection for the growth in the number
of children (either directly or on behalf of a parent or relative
caregivers) receiving independent legal representation in foster care
legal proceedings or civil legal proceedings. Similarly, an
implementation level is used in the calculations for the chart below as
an estimated projection for the growth in the number of children whose
tribe is receiving legal representation in state foster care placement
and termination of parental rights legal proceedings. The
implementation level is different for the cost estimates for foster
care legal proceedings and civil legal proceedings, and state court
foster care placement legal proceedings in which an Indian child's
tribe has intervened as explained below:
[cir] For independent legal representation in foster care legal
proceedings, the implementation level is measured separately for
children who are candidates and IV-E FC. The base year (FY 2021)
implementation levels are calculated from Form CB-496 FC part 1 which
identifies for each title IV-E agency on a quarterly basis the average
monthly number of children where independent legal representation for
foster care proceedings is being provided for a candidate or IV-E FC.
For FY 2021, the independent legal representation for foster care
proceedings implementation level is 15.4 percent for IV-E FC and 7.9
percent for candidates. For FYs 2023-2032, the implementation levels
are derived from the experience observed in the reported caseload data
between FY 2020 and FY 2021 where a 24 percent growth rate occurred for
children in title IV-E foster care. We assume that the growth rate will
peak in the year this NPRM is finalized and then gradually diminish as
more title IV-E agencies take up the option to claim for these costs,
and more children are receiving this representation.
[cir] For legal representation by an Indian child's tribe in state
court foster care placement proceedings a single implementation level
is measured for children who are candidates and in IV-E FC. The base
year (FY 2021) implementation level is set at zero percent since
Federal funding for this service will not be available until this NPRM
is finalized. Although there is no known data on the extent to which we
anticipate title IV-E agencies will begin
[[Page 66777]]
providing legal representation by tribes to intervene in state court
foster care placement proceedings, we anticipate that this
administrative cost will be made available to 5 percent of potentially
eligible children in FY 2023 and that most of the growth will occur in
years 2-5 (FYs 2024-2027). In FY 2027 we anticipate 35 percent of
potentially eligible tribes will receive legal representation. In
subsequent FYs, the implementation rate growth will gradually diminish
as more title IV-E agencies take up the option to claim for these
costs, and more children on whose behalf a tribe is receiving this
representation.
[cir] For independent legal representation in civil legal
proceedings, the implementation level presumes that administrative cost
claims will be limited to those children on whose behalf independent
legal representation in foster care legal proceedings are claimed. Not
all children receiving legal representation in FC proceedings need
representation related to civil matters because the reasons for child
welfare involvement vary. Additionally, not all title IV-E agencies
providing independent legal representation in foster care legal
proceedings will opt to also provide such legal representation in civil
proceedings. We have no estimate for FY 2021 costs for legal
representation in civil legal proceedings as these will be new costs as
a result of finalizing this NPRM. We assume that the proportion of
children receiving legal representation for civil legal proceedings
(for both candidates and IV-E FC) will be derived from among those
receiving representation for foster care legal proceedings. We estimate
that the civil legal proceedings title IV-E caseload will grow
gradually each FY from 20 percent in FY 2023, to 45 percent in FY 2027
and up to 56 percent in FY 2032 of the children on whose behalf
representation is also being provided for foster care legal
proceedings. While there is a great deal of interest in providing legal
representation in civil legal proceedings, our projections take into
account that, in most instances, new or revised protocols will need to
be developed with various organizations to implement a final rule.
There will also be a need to secure state or tribal funds for the non-
Federal share of funding, which often requires legislative approvals.
Federal Cost Estimate for Independent Legal Representation in Foster
Care Legal Proceedings
Here we describe the individual calculations by line that are in
the following chart. All entries in the chart and the narrative below
are rounded to the nearest whole number. The calculations to obtain
these amounts, however, were performed without applying rounding to the
involved factor(s).
Line 1. National number of children (candidates and IV-E FC)
receiving legal representation in foster care legal proceedings. Line 1
of the table below provides that the actual number of children
receiving independent legal representation in FC proceedings in FY 2021
(baseline) was 10,477 candidates and 26,092 IV-E FC. Line 1 also
includes estimates of the annual number of children receiving
independent legal representation in foster care proceedings in the
following subsequent years: FYs 2023, 2024, 2025, 2027 and in 2032, the
estimated number of children is 29,525 candidates and 73,530 IV-E FC.
Line 2. National average FFP claim per child (candidates and IV-E
FC) for independent legal representation in foster care proceedings.
Line 2 of the table below displays that in FY 2021, the actual average
title IV-E administrative cost claim per child receiving independent
legal representation in foster care legal proceedings was $742 for
title IV-E candidates and $2,709 for children in title IV-E foster
care. We also provide estimates of the average title IV-E claim per
child in the following subsequent years: FYs 2023, 2024, 2025, 2027 and
in 2032 the per child average claim is estimated at $3,481 (IV-E FC)
and $954 (candidates).
Line 3. Average FFP claims for candidates and children in title IV-
E foster care for independent legal representation in foster care legal
proceedings. Line 3 of the table below displays that in FY 2021, the
actual FFP for children receiving independent legal representation in
foster care legal proceedings was $7,777,621 for candidates and
$70,689,345 for children in IV-E FC. We also provide estimates of the
average annual claims for these children in the following subsequent
years: FYs 2023, 2024, 2025, 2027 and in 2032 the estimated cost is
$28,160,009 (candidates) and $255,941,062 (IV-E FC).
Line 4. Total Federal costs for independent legal representation in
foster care legal proceedings (candidates and IV-E FC). Line 4 of the
table below provides that the actual total FFP in FY 2021 was
$78,466,966, which is the sum of the costs of independent legal
representation in foster care legal proceedings for candidates and IV-E
FC. We also provide estimates of the total FFP for these costs in the
following subsequent years: FYs 2023, 2024, 2025, 2027 and in 2032 the
estimated annual cost is $284,101,071. The estimates for these
subsequent FYs were calculated by multiplying line 1 by line 2 for
candidates and IV-E FC.
Line 5. Non-Federal costs for independent legal representation in
foster care legal proceedings. Line 5 of the table below displays the
total FY 2021 non-Federal costs of independent legal representation in
foster care proceedings for candidates and IV-E FC was $78,466,966.
This number is the same as line 4 because the FFP rate used in these
estimates is 50 percent, thus we estimate the costs for Federal and
non-Federal to be the same. We also provide estimates of the total non-
Federal costs of independent legal representation in foster care legal
proceedings in the following subsequent years: FYs 2023, 2024, 2025,
2027 and in 2032 the estimated annual cost is $284,101,071.
Line 6. Total Federal and non-Federal costs of independent legal
representation in foster care legal proceedings. Line 6 of the table
below is the sum of lines 4 and 5 for the total Federal and non-Federal
costs of independent legal representation in foster care legal
proceedings for candidates and IV-E FC. The total FY 2021 costs were
$156,933,932. We also provide estimates of these total Federal and non-
Federal costs in the following subsequent years: FYs 2023, 2024, 2025,
2027 and in 2032 the estimated annual cost is $568,202,142.
Federal Cost Estimate of Independent Legal Representation in Other
Civil Legal Proceedings
Line 7. Number of children (candidates and IV-E FC) receiving
independent legal representation in civil legal proceedings. Line 7 of
the table below displays the estimated number of children who will
receive independent legal representation in civil legal proceedings
either directly, or on behalf of a parent or relative caregiver in FY
2023 as 10,137 children. There is no estimate for FY 2021 in the chart
because these costs were not claimed; these will be new costs as a
result of finalizing this NPRM. We also provide estimates for
subsequent years: FYs 2024, 2025, 2027 and in 2032 the estimated number
of children is 63,482. This is based on the implementation level which
is the percentage of
[[Page 66778]]
children receiving independent legal representation in foster care
legal proceedings who are projected to also receive independent legal
representation in civil legal proceedings in the year.
Line 8. National average title IV-E administrative cost claim per
child for independent legal representation in civil legal proceedings.
Line 8 of the table below displays that in FY 2021, we assumed the
average FFP claim per child (candidates and IV-E FC) receiving
independent legal representation in civil proceedings to be $1,262. We
also provide estimates for these costs for the following subsequent
years: FYs 2023, 2024, 2025, 2027 and in 2032, we estimate the average
FFP claim per child to be $1,621. These cost estimates were derived
from data provided by the ``Detroit Model'' legal services program in
which legal representation in civil issues for child welfare clients
was calculated as an average yearly amount of $2,524 gross ($1,262 50
percent FFP title IV-E Federal share) per client. We used the Detroit
model project because we do not have current title IV-E administrative
cost claims reported on the Form CB-496 for civil proceedings that we
can use for an estimate of the cost of providing independent legal
representation in civil legal proceedings in this NPRM. This is the
only program model known to us providing civil legal representation in
pre-petition cases for which average cost data is available, thus the
only way for us to estimate these costs (Detroit Center for Family
Advocacy Pilot Evaluation report July 2009-June 2012; Sankaran, Vivek.
Case Closed: Addressing Unmet Legal Needs and Stabilizing Families.
M.L. Raimon, co-author. Center for the Study of Social Policy [2014]
[Detroit model project]).
Pursuant to the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for HHS Awards, title IV-E agencies
must, among other things, ensure costs are reasonable (45 CFR
1335.30(i) applying 45 CFR 75.404). A cost is reasonable if, in its
nature and amount, it does not exceed that which would be incurred by a
prudent person under the circumstances prevailing at the time the
decision was made to incur the cost. The title IV-E agency must
describe how the administrative costs of allowable legal representation
are allocated in a public assistance cost allocation plan that is
reviewed and approved by HHS (45 CFR 1355.30(k) applying 45 CFR
95.507). To the extent that a title IV-E agency contracts with another
public or private agency to provide or assist in title IV-E allowable
activities, the title IV-E agency may claim reasonable costs consistent
with their cost allocation plan and supported by a written agreement
that, among other things, includes the specific service(s) being
purchased, and the basis for billing (45 CFR 95.507(b)(6)). Many title
IV-E agencies already have contracts with attorneys providing
independent legal representation in foster care related hearings on
behalf of children and their parent(s) where the child is either a
candidate for or in foster care. Such agencies have experience
identifying reasonable rates and appropriate categories of costs for
allowable legal representation. We encourage title IV-E agencies to
share comments on these experiences. We also specifically request
comments from the public on what a prudent person under the
circumstances would reasonably pay for attorney fees in civil legal
proceedings.
Line 9. Federal costs of independent legal representation in civil
legal proceedings. Line 9 of the table below provides the estimated
Federal administrative costs at 50 percent FFP for independent legal
representation in civil legal proceedings for candidates and IV-E FC.
These costs were calculated by multiplying the expected average monthly
caseload (line 7) by the expected average annual claim per child (line
8). We provide estimated Federal costs of $13,393,972 for FY 2023 and
in subsequent years: FYs 2024, 2025, 2027 and in 2032 the estimated
Federal cost is $102,928,630.
Line 10. Non-Federal costs of independent legal representation in
civil legal proceedings. Line 10 provides the estimated non-Federal
share of administrative costs for independent legal representation in
civil legal proceedings for candidates and IV-E FC, which is 50 percent
of the total on line 11. This number is the same as line 9 because the
FFP rate used in these estimates is 50 percent, thus we estimate the
costs for Federal and non-Fderal to be the same. We provide estimated
non-Federal costs of $13,393,972 beginning in FY 2023 and in subsequent
FYs: 2024, 2025, 2027 and in 2032 the estimated non-Federal cost is
$102,928,630. There is no estimate for FY 2021 in the chart because
these costs were not claimed; these will be new costs as a result of
finalizing this NPRM.
Line 11. Total Federal and non-Federal cost of independent legal
representation in civil legal proceedings. Line 11 displays the annual
estimated total (Federal + non-Federal) costs for independent legal
representation for candidates and IV-E FC in civil legal proceedings.
This is the sum of lines 9 and 10. We estimate these total costs
beginning in FY 2023 as $26,787,943 and in subsequent FYs: 2024, 2025,
2027 and in 2032, the estimate is $205,857,260. There is no estimate
for FY 2021 in the chart because these costs were not claimed; these
will be new costs as a result of finalizing this NPRM.
Line 12. Number of Indian children on whose behalf a tribe may
receive legal representation in foster care legal proceedings
(candidates and IV-E FC). Line 12 of the table below provides the
estimated number of Indian children for whom legal representation may
be received by their tribe in FC proceedings. In FY 2021 (baseline)
candidates and IV-E FC are not listed since this administrative cost
was not available. We estimate that the total number, beginning in 2023
and subsequent FYs 2024, 2025, 2027 and 2032 is 3,342 for candidates
and 7,814 for IV-E FC.
Line 13. National average FFP claim per child (candidates and IV-E
FC) for tribal representation in foster care legal proceedings. Line 13
of the table below provides the average title IV-E claim per child for
the tribal representation in foster care proceedings. In FY 2021
(baseline), the average title IV-E administrative cost claim per child
receiving legal representation in foster care legal proceedings was
$1,262 (estimated) for title IV-E candidates and $2,709 (actual) for
children in title IV-E foster care. We estimate the total per child
claim for subsequent FYs 2023, 2024, 2025, 2027, and 2032 is
$1,621(candidates) and $3,481 (IV-E FC).
Line 14. Average FFP for IV-E FC and candidate itemized for tribal
representation in foster care legal proceedings. Line 14 of the table
below displays estimates for the average annual claims for children
whose tribe is receiving legal representation. In FY 2021, there was no
actual FFP for children receiving tribal legal representation in foster
care legal proceedings. For subsequent FYs 2023, 2024, 2025, 2027 and
2032 the estimated cost is $5,419,446 (candidates) and $27,200,314 (IV-
E FC).
Line 15. Total FFP for tribal representation in foster care legal
proceedings. Line 15 of the table below provides the total FFP for
tribal representation in foster care legal proceedings by multiplying
line 12 for candidates by line 13 for IV-E FC. For FY 2021 (base year),
there was no actual FFP for children receiving tribal legal
representation in foster care legal proceedings. Estimates of the total
annual FFP for these costs in FYs 2023,
[[Page 66779]]
2024, 2025, 2027 and 2032 is $32,619,760.
Line 16. Total non-Federal cost for tribal representation in foster
care legal proceedings. Line 16 provides the estimated non-Federal
share of administrative costs for tribal legal representation in foster
care legal proceedings for candidates and IV-E FC by multiplying line 1
by line 2, which is 50 percent of the total on line 17. This number is
the same as line 15 because the FFP rate used in these estimates is 50
percent, therefore we estimate the costs for Federal and non-Federal to
be the same. We provide estimated non-Federal costs of $2,641,921
beginning in FY 2023 and in subsequent FYs 2024, 2025, 2027 and 2032,
the estimated non-Federal cost is $32,619,760. There is no estimate for
FY 2021 in the chart because these costs were not claimed; these will
be new costs as a result of finalizing this NPRM.
Line 17. Total cost for foster care legal proceedings. Line 17
displays the annual estimated total Federal and non-Federal costs for
tribal legal representation for candidates and IV-E FC in foster care
legal proceedings. This is the sum of lines 15 and 16. We estimate
these total costs beginning in FY 2023 as $5,283,842 and in subsequent
FYs 2024, 2025, 2027 and 2032, the estimate is $65,239,520. There is no
estimate for FY 2021 in the chart because these costs were not claimed;
these will be new costs as a result of finalizing this NPRM.
ACF understands that representation for a child's tribe in foster
care legal proceedings in practice may not always be by an attorney.
Some states allow non-attorneys to represent a child's tribe if they
are a member of and authorized to represent the child's tribe. We are
considering allowing the cost of a non-attorney to represent a child's
tribe when it is necessary for the administration of the title IVE
plan. We are seeking comments on this proposal and are especially
interested in any evidence that non-attorneys would effectively provide
the information that courts need, and any recommendations for how ACF
would ensure that non-attorneys adequately represent the child's tribe.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 2021 (Baseline) 2023 2024 2025 2027 (Year 5) 2032 (Year 10)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. National number of children 10,447 13,201 15,973 19,328 24,886 29,525
receiving legal representation (candidates), (candidates), (candidates), (candidates), (candidates), (candidates),
in foster care legal 26,092 (IV-E FC). 32,876 (IV-E FC). 39,779 (IV-E FC). 48,133 (IV-E FC). 61,976 (IV-E FC). 73,530 (IV-E FC).
proceedings (candidates and IV-
E FC).
2. National average FFP claim $742 (candidates), $777 (candidates), $795 (candidates), $813 (candidates), $851 (candidates), $954 (candidates),
per child (candidates and IV-E $2,709 (IV-E FC). $2,837 (IV-E FC). $2,902 (IV-E FC). $2,969 (IV-E FC). $3,107 (IV-E FC). $3,481 (IV-E FC).
for foster care legal
proceedings.
3. Average FFP for IV-E FC and $7,777,621 $10,260,393 $12,700,622 $15,721,212 $21,184,501 $28,160,009
candidate itemized for foster (candidates), (candidates), (candidates), $ (candidates), (candidates), (candidates),
care legal proceedings. $70,689,345 (IV-E $93,254,798 (IV-E 115,433,586 (IV-E $142,887,156 (IV- $192,541,977 (IV- $255,941,062 (IV-
FC). FC). FC). E FC). E FC). E FC).
4. Total FFP (line 1 x line 2 $78,466,966....... $103,515,191...... $128,134,209...... $158,608,368...... $213,726,479...... $284,101,071.
for combined IV-E FC child and
candidate) for foster care
legal proceedings.
5. Total non-Federal cost (line $78,466,966....... $103,515,191...... $128,134,209...... $158,608,368...... $213,726,479...... $284,101,071.
1 x line 2 for combined IV-E FC
and candidates) for foster care
legal proceedings.
6. Total cost for foster care $156,933,932...... $207,030,382...... $256,268,417...... $317,216,735...... $427,452,958...... $568,202,142.
legal proceedings (line 4 +
line 5).
7. Number of children receiving N/A............... 10,137............ 18,398............ 25,972............ 42,997............ 63,482.
legal representation in civil
legal proceedings.
8. National average FFP claim $1,262 (baseline). $1,321............ $1,352a........... $1,383............ $1,447............ $1,621.
per child for civil legal
proceedings.
9. Total FFP for civil legal N/A............... $13,393,972....... $24,869,190....... $35,914,468....... $62,222,311....... $102,928,630.
proceedings (line 7 x line 8).
10. Total non-Federal costs for N/A............... $13,393,972....... $24,869,190....... $35,914,468....... $62,222,311....... $102,928,630.
civil legal proceedings (line 7
x line 8).
11. Total Federal + non-Federal N/A............... $26,787,943....... $49,738,380....... $71,828,936....... $124,444,623...... $205,857,260.
costs for civil legal
proceedings (line 9 + line 10).
12. Number of children whose N/A............... 332 (candidates), 1,007 1,694 2,420 3,342
tribe may receive legal 777 (IV-E FC). (candidates), (candidates), (candidates), (candidates),
representation in foster care 2,353 (IV-E FC). 3,961 (IV-E FC). 5,657 (IV-E FC). 7,814 (IV-E FC).
legal proceedings (candidates
and IV-E FC).
13. National average FFP claim N/A............... $1,321 $1,352 $1,383 $1,447 $1,621
per child (candidates and IV-E (candidates), $ (candidates), $ (candidates), $ (candidates), $ (candidates), $
FC) for ta tribe in foster care 2,837 (IV-E FC). 2,902 (IV-E FC). 2,969 (IV-E FC). 3,107 (IV-E FC). 3,481 (IV-E FC).
legal proceedings.
14. Average FFP for IV-E FC and N/A............... $438,929 $1,360,543 $2,342,923 $3,501,709 $5,419,446
candidate itemized for a tribe (candidates), (candidates), (candidates), (candidates), (candidates),
in foster care legal $2,202,993 (IV-E $6,828,594 (IV-E $11,759,180 (IV-E $17,575,152 (IV-E $27,200,314 (IV-E
proceedings. FC). FC). FC). FC). FC).
15. Total FFP (line 12 x line 13 N/A............... $2,641,921........ $8,189,137........ $14,102,103....... $21,076,861....... $32,619,760.
for combined IV-E FC child and
candidate) for a tribe in
foster care legal proceedings.
16. Total non-Federal cost (line N/A............... $2,641,921........ $8,189,137........ $14,102,103....... $21,076,861....... $32,619,760.
12 x line 13 for combined IV-E
FC and candidates) for a tribe
in foster care legal
proceedings.
17. Total cost for a tribe in N/A............... $5,283,842........ $16,378,274....... $28,204,206....... $42,153,722....... $65,239,520.
foster care legal proceedings
(line 15 + line 16).
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[[Page 66780]]
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.
Preliminarily, 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 $119 2021 7 10
(annualized)...................... 98 2021 3 10
----------------------------------------------------------------------------------------------------------------
From/To............................ From: Federal Government To: children eligible for
title IV-E foster care
----------------------------------------------------------------------------------------------------------------
Other Transfers (annualized)....... 119 2021 7 10
98 2021 3 10
----------------------------------------------------------------------------------------------------------------
From/To............................ From: Title IV-E agencies To: children eligible for
title IV-E foster care
----------------------------------------------------------------------------------------------------------------
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 and either impose substantial
direct compliance costs on tribes or preempt state law. Similarly,
ACF's Tribal Consultation Policy says that consultation is triggered
for a new rule adoption that significantly affects tribes, meaning the
new rule adoption has substantial direct effects on one on more Indian
Tribes, on the amount or duration of ACF program funding, on the
delivery of ACF programs or services to one or more Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes. This final rule does not meet either
standard for consultation. Since it is the option of the tribal title
IV-E agency whether or not to claim FFP for independent legal
representation in foster care and other civil legal proceedings
necessary to carry out the requirements in the agency's title IV-E
foster care plan, Executive Order 13175 does not apply. However, we
plan to conduct tribal consultation during the public comment period.
We believe that tribes will have great interest in our proposal to
claim FFP for the administrative costs of legal representation for an
attorney representing an Indian child's tribe when the child's tribe
intervenes in specified state court proceedings.
Jeff Hild, Acting Assistant Secretary of the Administration for
Children & Families, approved this document on June 13, 2023.
List of Subjects in 45 CFR Part 1356
Administrative costs, Adoption and foster care, Child welfare,
Fiscal requirements (title IV-E), Grant programs--social programs,
Statewide information systems.
(Catalog of Federal Domestic Assistance Program Number 93.658,
Foster Care Maintenance; 93.659, Adoption Assistance; 93.645, Child
Welfare Services--State Grants).
Dated: September 21, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.
For the reasons set forth in the preamble, ACF proposes to amend 45
CFR part 1356 as follows:
PART 1356--REQUIREMENTS APPLICABLE TO TITLE IV-E
0
1. The authority citation for part 1356 continues to read as follows:
Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq., 42
U.S.C. 1302.
0
2. Amend Sec. 1356.60 by revising paragraphs (c)(2)(viii) and (x) and
adding paragraphs (c)(2)(xi) and (c)(4) to read as follows:
Sec. 1356.60 Fiscal requirements (title IV-E).
* * * * *
(c) * * *
(2) * * *
(viii) Rate setting;
* * * * *
(x) Costs related to data collection and reporting; and
(xi) Costs related to legal representation described in paragraph
(c)(4) of this section.
* * * * *
(4) The following are allowable administrative costs of legal
representation:
(i) Legal representation in foster care proceedings provided by an
attorney representing the title IV-E agency or any other public agency
which has an agreement in effect under which the other agency has
placement and care responsibility of a title IV-E eligible child
pursuant to 472(a)(2)(B)(ii) of the Act;
(ii) Independent legal representation provided by an attorney
representing a child in title IV-E foster care, a child who is a
candidate for title IV-E foster care, the child's parent(s), and the
child's relative caregiver in foster care and other civil legal
proceedings as necessary to carry out the requirements in the agency's
title IV-E foster care plan. Independent legal representation in civil
proceedings includes facilitating, arranging, brokering, advocating, or
otherwise linking clients with providers and services as identified in
the child's case plan pursuant to sections 422, 471(a)(16), and 475 of
the Act; and
(iii) Legal representation provided by an attorney representing an
Indian child's tribe (as defined by 25 U.S.C.1903(5)), when the child's
tribe intervenes in any state court proceeding for the foster care
placement or termination of parental rights of an Indian child who is
in title IV-E foster care or an Indian child who is a candidate for
title IV-E foster care.
* * * * *
[FR Doc. 2023-20932 Filed 9-27-23; 8:45 am]
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