Designated Placement Requirements Under Titles IV-E and IV-B for LGBTQI+ Children, 34818-34861 [2024-08982]

Download as PDF 34818 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families 45 CFR Part 1355 RIN 0970–AD03 Designated Placement Requirements Under Titles IV–E and IV–B for LGBTQI+ Children 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: Final rule. AGENCY: This rule finalizes requirements under titles IV–E and IV– B for children in foster care who are LGBTQI+ (an umbrella term used in this regulation). The proposed rule was published on September 28, 2023. Federal law requires that state and tribal title IV–E and IV–B agencies (‘‘agencies’’) ensure that each child in foster care receives ‘‘safe and proper’’ care and has a case plan that addresses the specific needs of the child while in foster care to support their health and wellbeing. To meet these and other related statutory requirements, this final rule requires agencies to ensure that placements for all children are free from harassment, mistreatment, and abuse. The final rule requires that title IV–E and IV–B agencies ensure a Designated Placement is available for all children who identify as LGBTQI+ and specifies the Designated Placement requirements. DATES: This final rule is effective on July 1, 2024. Title IV–E and IV–B agencies must implement the provisions of this final rule on or before October 1, 2026. FOR FURTHER INFORMATION CONTACT: Rebecca Jones Gaston, Administration on Children, Youth, and Families, (202) 205–8618, cbcomments@acf.hhs.gov. SUPPLEMENTARY INFORMATION: SUMMARY: lotter on DSK11XQN23PROD with RULES7 Table of Contents I. Executive Summary Overview of Notice of Proposed Rulemaking Overview of Final Rule Legal Authority for the Final Rule II. Background LGBTQI+ Children in the Child Welfare System Overrepresentation of LGBTQI+ Children in Foster Care Impact of Family and Caregiver Behavior on LGBTQI+ Child Wellbeing Experience of LGBTQI+ Children in Foster Care Mental Health Needs of LGBTQI+ Children VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 Current Approaches To Meet the Needs of LGBTQI+ Children in Foster Care III. Regulatory Provisions and Responses to Comments Summary of Commenters Summary of Comments From State and Local Child Welfare Agencies Summary of Comments From Congressional Members Summary of Comments From Advocacy Organizations, Providers, and Universities Summary of Comments From Individual Commenters Section by Section Discussion of Regulatory Provisions Title and Definition of LGBTQI+ Section 1355.22(a) Protections Generally Applicable Section 1355.22(b)(1) Designated Placements and Services for LGBTQI+ Children Section 1355.22(b)(2) Process for Notification of and Request for Designated Placements Section 1355.22(b)(3) Placement and Services Decisions and Changes Section 1355.22(c) Process for Reporting Concerns About Placements and Concerns About Retaliation Section 1355.22(d) Retaliation Prohibited Section 1355.22(e) Access To Supportive and Age- or Developmentally Appropriate Services Section 135.22(f) Placement of Transgender and Gender Non-Conforming Children in Foster Care Section 1355.22(g) Compliance With Privacy Laws Section 1355.22(h) Training and Notification Requirements Section 1355.22(i) Protections for Religious Freedom, Conscience, and Free Speech Section 1355.22(j) No Penalties for Providers That Do Not Seek To Qualify as Designated Placements Section 1355.22(k) Severability Section 1355.22(l) Implementation Section 1355.22(m) No Effect on More Protective Laws or Policies Section 1355.34(c) Criteria for Determining Substantial Conformity Comments on Cross-Cutting Issues Kinship Caregivers Impact of the Regulation on Foster Provider Availability and Participation Youth Disclosure of LGBTQI+ Status Research on LGBTQI+ Children in Foster Care Nondiscrimination Provisions Implementation Costs Requests for Technical Assistance and Implementation Supports and Questions About Implementation and Compliance Monitoring IV. Response to Comments Raising Statutory and Constitutional Concerns First Amendment and Religious Freedom Statutory Authority Arbitrary and Capricious Spending Clause Federalism Principles Nondelegation Doctrine Major Questions Doctrine Fulton v. City of Philadelphia V. Implementation Timeframe PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 VI. Regulatory Impact Analysis VII. Tribal Consultation Statement I. Executive Summary Overview of Notice of Proposed Rulemaking On September 28, 2023 (88 FR 66752), HHS issued a notice of proposed rulemaking (NPRM) called Safe and Appropriate Foster Care Placement Requirements for Titles IV–E and IV–B. ACF proposed the NPRM to support states and tribes in complying with Federal laws that require that all children in foster care receive safe and proper care. In the NPRM, ACF proposed that it would require agencies to implement specific processes and requirements to ensure that children in foster care who identify as LGBTQI+ would be placed with foster care providers who were trained to meet their specific needs related to their sexual orientation and gender identity and who would facilitate access to ageappropriate services to support their health and wellbeing. The NPRM referred to these specially designated placements as ‘‘Safe and Appropriate’’ placements for LGBTQI+ youth. Under the proposed rule, agencies would be required to ensure that such placements were available for any child in foster care who identifies as LGBTQI+ and provided to any such child in foster care. However, the NPRM would not have required providers to become designated as such a placement for LGBTQI+ children. The NPRM also proposed agency procedures to ensure a child who identifies as LGBTQI+ would not experience retaliation—regardless of whether the child was in a specially designated ‘‘Safe and Appropriate’’ placement, or whether the child was placed with a foster care provider who had chosen not to seek such a designation. The NPRM proposed that title IV–E/ IV–B agencies would be required to notify specified children (including all children at or above the age of 14) about the availability of these placements, the process to request such a placement, and the process to report placement concerns. The NPRM also set forth specific steps for the placement of transgender, intersex, and gender nonconforming children in sex-segregated child care institutions and required specific training for title IV–E/IV–B agency caseworkers and supervisors on how to appropriately serve LGBTQI+ children. Finally, the proposed rule explained that HHS would monitor a state agency’s compliance with the requirement in proposed § 1355.22(a)(1) through the Child and Family Services E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 Reviews (CFSRs). As explained in the proposed rule, the CFSRs are a formal monitoring protocol in which the state’s efforts to comply with title IV–E and IV– B program requirements are assessed at the case and systems level. No tribal title IV–E agency is currently subject to CFSRs because none has a sufficient number of children in foster care and children receiving in-home services for ACF to apply the onsite CFSR case sampling procedures. Overview of Final Rule In this final rule, ACF clarifies how title IV–E/IV–B agencies must meet title IV–E and IV–B statutory requirements to appropriately serve LGBTQI+ children in foster care. ACF received a total of 13,768 comments on the NPRM and has carefully considered each comment. A summary of comments and responses are included in sections III and IV of this preamble. Based on comments received, ACF has made modifications to the final rule. To address requests from many commenters for further clarity about the meaning of ‘‘safe and appropriate,’’ and its applicability to all placements, the final rule distinguishes between the requirement of a safe and appropriate placement, which is applicable to all children in foster care, and a Designated Placement for LGBTQI+ children, which is the term used in the final rule to describe providers who meet specified requirements described in the rule to serve as a designated provider for LGBTQI+ children. Because Federal law requires that every child in foster care receive ‘‘safe and proper’’ care and placement in the ‘‘most appropriate setting available,’’ ACF reiterates that all foster care placements must be safe and appropriate for all children—including LGBTQI+ children. This general protection that all foster care placements must be safe and appropriate reiterates existing statutory and regulatory requirements that title IV–E/IV–B agencies must meet to comply with Federal law for all children in foster care. This final rule specifies that as part of meeting the requirement to provide a safe and appropriate placement for all children in foster care, the title IV–E/IV–B agency must ensure that placements, including those for LGBTQI+ children, are free from harassment, mistreatment, and abuse, including related to a child’s sexual orientation or gender identity. As set forth in the NPRM, HHS recognizes that LGBTQI+ youth face significant disparities in the child welfare system. In order for LGBTQI+ youth to receive care that meets Federal VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 statutory guarantees that each child in foster care will receive safe and proper care that is consistent with the best interest and special needs of the child, title IV–E/IV–B agencies must ensure LGBTQI+ children have access to specially designated placements that are prepared to meet their unique needs and create a supportive environment. This final rule refers to those specially designated placements as ‘‘Designated Placements.’’ The requirements of a Designated Placement are consistent with the requirements proposed in the NPRM for specially designated placements for LGBTQI+ children (which the NPRM referred to as ‘‘Safe and Appropriate’’ placements), with some clarifying text added. Recognizing that safe and proper treatment for LGBTQI+ children requires attention to certain particular harms and risks that this population faces, this final rule specifies that Designated Placement providers must have particular training and provide particular protections for LGBTQI+ children that may not be relevant or necessary for non-LGBTQI+ children. The final rule does not require any provider to become a Designated Placement. Further, the rule specifies that nothing in the rule should be construed as requiring or authorizing a state to penalize a provider that does not seek or is determined not to qualify as a Designated Placement provider. It also says that nothing in this rule shall limit any State, tribe, or local government from imposing or enforcing, as a matter of law or policy, requirements that provide greater protection to LGBTQI+ children than this rule provides. The rule requires that the title IV–E/ IV–B agency ensure a Designated Placement is available for, and may be requested by, any child in foster care who identifies as LGBTQI+. In order to be considered a Designated Placement for an LGBTQI+ child, the placement must satisfy three conditions, each of which goes beyond the general requirements that apply to all placements. First, the provider must commit to establishing an environment that supports the child’s LGBTQI+ status or identity. Second, the provider must be trained with the appropriate knowledge and skills to provide for the needs of the child related to the child’s self-identified sexual orientation, gender identity, and gender expression. Third, the provider must facilitate the child’s access to age- or developmentally appropriate resources, services, and activities that support their health and well-being. HHS has concluded that these conditions are generally necessary to effectuate the statutory promise of a PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 34819 safe and appropriate placement for children who are LGBTQI+ because of the extensive evidence of the specific needs LGBTQI+ children have which require more specialized support. This rule requires title IV–E/IV–B agencies to ensure that the totality of their child welfare system includes sufficient placements for LGBTQI+ children that meet each of these standards. As explained further below, when making placement and services decisions related to an LGBTQI+ child, the title IV–E/IV–B agency must give substantial weight to the child’s concerns or request for a Designated Placement in determining the child’s best interests. The final rule requires agencies to notify certain children about the availability of Designated Placements, the process to request one, and the process to report concerns about their current placement or about retaliation against them. Notification requirements apply to all children age 14 and over, as well as those under age 14 removed from their home due, in whole or part, to familial conflict about their sexual orientation, gender identity, gender expression, or sex characteristics; or if they have disclosed their LGBTQI+ status or identity; or whose LGBTQI+ status or identity is otherwise known to the agency. The final rule also requires that the title IV–E/IV–B agency ensure that LGBTQI+ children have access to age and developmentally appropriate services that support their needs related to their sexual orientation and gender identity or expression. This includes clinically appropriate mental and behavioral health care supportive of their sexual orientation and gender identity and expression, as needed. A number of commenters emphasized that, in many cases, if a child requests services and a current placement chooses to accept them, that could make a current placement more appropriate for an LGBTQI+ child and prevent any need for a placement change. Other commenters raised concerns about the potential for disruptive placement changes as a result of the proposed rule. In response, the final rule recognizes that, in addition to requesting a change in placement to a Designated Placement, a child could also request that services be offered to stabilize their current placement. Moreover, if a child requests a Designated Placement, the final rule clarifies that to promote placement stability, the title IV–E/IV–B agency must first consider whether, if the current provider wishes to accept additional services, it would allow the current provider to voluntarily meet the conditions for a Designated Placement. E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 34820 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations Promoting such stability is particularly important in cases where children are placed with kin, siblings, close to families of origin, and in family-like settings. In making the determination about the child’s best interests, the agency is required to give substantial weight to the child’s request. If the child’s current provider elects to become a Designated Placement, in accordance with the case review system and protocols, the title IV–E/IV–B agency must regularly review the status of the placement to ensure it progresses towards meeting the relevant conditions. ACF expects this process will in some cases enable title IV–E/IV– B agencies to provide Designated Placements while preserving placement stability, particularly in settings where children are placed with kin, with siblings, in close proximity to families of origin, or in family-like settings as recommended by commenters. The final rule also requires that the title IV–E/IV–B agency have a procedure to protect LGBTQI+ children in foster care from retaliation for disclosure of their LGBTQI+ status and/or identity, if they are reported or perceived to have LGBTQI+ status and/or identity, or for requesting a Designated Placement. It also requires training for title IV–E/IV– B agency caseworkers and supervisors on how to appropriately serve LGBTQI+ children and on how to implement the procedural requirements of the rule. The final rule requires title IV–E/IV–B agencies to ensure that agency contractors and subrecipients who have responsibility for placing children in foster care, making placement decisions, or providing services, as well as all placement providers, are informed of the procedural requirements of the rule. The statute at 42 U.S.C. 671(a)(8) enumerates safeguards which restrict the use or disclosure of information concerning children in foster care. These critical safeguards ensure the privacy and confidentiality of children with very limited exceptions. Consistent with title IV–E and IV–B confidentiality requirements at 42 U.S.C. 671(a)(8) and 45 CFR 1355.21(a), 1355.30(p)(3), and 205.50, the final rule provides that agencies are prohibited from disclosing information about a child’s LGBTQI+ status or identity except as provided by statute and that any such disclosure must be the minimum necessary to accomplish the legally-permitted purposes. In response to comments, the final rule clarifies the privacy and confidentiality protections for information related to an LGBTQI+ child’s status or identity. The Children’s Bureau will monitor a state agency’s compliance through the CFSRs, a formal VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 monitoring protocol in which the state’s efforts to comply with title IV–E and IV– B program requirements are assessed at the case and systems level. No tribal title IV–E agency is currently subject to CFSRs because none has a sufficient number of children in foster care and children receiving in-home services for ACF to apply the onsite CFSR case sampling procedures. All requirements of the rule will be subject to the partial review process. The final rule expressly provides that insofar as the application of any requirement under the rule would violate applicable Federal protections for religious freedom, conscience, and free speech, such application shall not be required. The rule does not require any provider to become a Designated Placement, and specifies that nothing in the rule should be construed as requiring or authorizing a state to penalize a provider that does not seek or is determined not to qualify as a Designated Placement from participation in the state’s program under titles IV–E and IV–B. The final rule also clarifies that the rule does not limit any State, Tribal or local government or agency from imposing or enforcing as a matter of state, tribal or local law or policy, requirements that provide greater protection to LGBTQI+ children than this rule provides. Legal Authority for the Final Rule Titles IV–E and IV–B of the Social Security Act (the Act) require title IV– E/IV–B agencies to provide case plans for all children in foster care. Under section 475(1)(B) of the Social Security Act, 42 U.S.C. 675(1)(B), case plans must include a plan for assuring that the child receives safe and proper care and that services are provided to improve the conditions in the parents’ home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care. The plan must also discuss the appropriateness of the services provided to the child under the plan. Agencies must also have case review systems through which they ensure that each foster child’s case plan is ‘‘designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available and in close proximity to the parents’ home, consistent with the best interest and special needs of the child[.]’’ (Section 475(5) of the Social Security Act, 42 U.S.C. 675(5)(A)) In order to receive title IV–E and IV–B funds, agencies must have plans approved by ACF that provide for case plans and case review systems that meet these statutory requirements (sections PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 471(a)(16) and 422(b) of the Social Security Act, 42 U.S.C. 671(a)(16) and 622(b)). Additionally, in order to receive title IV–E funds, states and tribes must certify in their title IV–E plans that they will ensure that before a child in foster care is placed with prospective foster parents, the prospective foster parents ‘‘will be prepared adequately with the appropriate knowledge and skills to provide for the needs of the child [and] that the preparation will be continued, as necessary, after the placement of the child’’ (section 471(a)(24) of the Social Security Act, 42 U.S.C. 671(a)(24)). The Act also requires that agencies ensure that foster parents, as well as at least one official at any child care institution providing foster care, receive training on how to use and apply the ‘‘reasonable and prudent parent standard,’’ a ‘‘standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the State to participate in extracurricular, enrichment, cultural, and social activities’’ (Social Security Act 471(a)(24) and (a)(10) and 475(10)(A), 42 U.S.C. 671(a)(24) and (a)(10) and 675(10)(A)). The Act requires agencies to develop and implement standards to ensure that children in foster care placements are provided quality services that protect their safety and health (Social Security Act section 471(a)(22), 42 U.S.C. 671(a)(22)). The Act authorizes the Secretary of Health and Human Services (the Secretary) to review state compliance with the title IV–E and IV–B program requirements. Specifically, the Act requires the Secretary to determine whether state programs are in substantial conformity with state plan requirements under titles IV–E and IV– B, implementing regulations promulgated by the Secretary and the states’ approved state plans (section 1123A of the Social Security Act, 42 U.S.C. 1320a–2a). Finally, the Act authorizes the Secretary to ‘‘make and publish such rules and regulations . . . as may be necessary to the efficient administration of the functions with which [the Secretary] is charged under [the Social Security Act].’’ (Section 1102 of the Social Security Act, 42 U.S.C. 1302) E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations II. Background LGBTQI+ Children in the Child Welfare System As the NPRM explained, a significant body of evidence demonstrates that LGBTQI+ children are overrepresented in the child welfare system and face poor outcomes in foster care.1 lotter on DSK11XQN23PROD with RULES7 Overrepresentation of LGBTQI+ Children in Foster Care LGBTQI+ children are overrepresented in the foster care population. One recent confidential survey revealed that 32 percent of foster youth ages 12–21 surveyed report that they identify as having a diverse sexual orientation or gender identity.2 Another large confidential survey found that 30.4 percent of foster children aged 10–18 identify as LGBTQ+.3 A recent study using nationally representative survey data found that youth with a minority sexual orientation, such as lesbian, gay, and bisexual youth, are nearly two and a half times as likely as heterosexual youth to experience a foster care placement.4 A study published in 2016 of the population of youth who have been involved in both the foster care and juvenile justice systems found that LGBTQ+ juvenile-justice involved youth were three times more likely to have been removed from their home and twice as likely to have experienced being physically abused in their homes prior to removal than their non-LGBTQ+ juvenile-justice involved counterparts.5 1 Some studies cited below defined their scope as LGBTQ, LGBT, or Lesbian, Gay, and Bisexual (LGB) children or youth specifically. Where one of those studies is cited, this regulation uses the same acronym as the study itself. 2 Institute for Innovation and Implementation at University of Maryland’s School of Social Work and the National Quality Improvement Center on Tailored Services, Placement Stability, and Permanency for LBTQ2S Children and Youth in Foster Care (2021). Cuyahoga Youth Count: A Report on LBTQ+ Youth Experience in Foster Care, https://theinstitute.umaryland.edu/media/ssw/ institute/Cuyahoga-Youth-Count.6.8.1.pdf. 3 Baams, L., Russell, S.T., and Wilson, B.D.M. LGBTQ Youth in Unstable Housing and Foster Care, American Academy of Pediatrics, Volume 143, Issue 3, March 2019. https://doi.org/10.1542/ peds.2017-4211. 4 Fish, J., Baams, L., Wojciak, A.S., & Russell, S.T. (2019), Are Sexual Minority Youth Overrepresented in Foster Care, Child Welfare, and Out-of-Home Placement? Findings from Nationally Representative Data. Child Abuse and Neglect, https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC7306404/. 5 Irvine, Angela, and Canfield, Aisha. The Overrepresentation of Lesbian, Gay, Bisexual, Questioning, Gender Nonconforming and Transgender Youth within the Child Welfare to Juvenile Justice Crossover Population, 24.2 A.m. U. J. Gender Soc. Pol’y & L., 243–261 (2016), https:// digitalcommons.wcl.american.edu/cgi/viewcontent. cgi?article=1679&context=jgspl. VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 LGBTQI+ children are overrepresented in the child welfare system because of a confluence of factors. Studies suggest that LGBTQ+ children face higher rates of parental physical abuse and are more likely to run away from home or be kicked out than their non-LGBTQ+ counterparts, often because of conflict over their sexual orientation or gender identity.6 These experiences place LGBTQI+ children at greater risk of entering foster care and mean that many LGBTQI+ children enter foster care with complex needs and trauma related to the discrimination and stigma they have experienced because of their sexual orientation or gender identity. As a result of reviewing this research, and hearing from LGBTQI+ individuals with lived experience in foster care, we have developed this regulation to improve how title IV–E/IV–B agencies address the needs of this population.7 Impact of Family and Caregiver Behavior on LGBTQI+ Child Wellbeing Research shows that the support LGBTQI+ children receive from their families and caregivers related to their sexual orientation or gender identity is highly predictive of their mental health and wellbeing. For example, a 2022 survey found the five most common ways that LGBTQ youth reported feeling supported by their parents or caregivers included having been welcoming to their LGBTQ friends or partners, talking with them respectfully about their LGBTQ identity, using their name and pronouns correctly, supporting their gender expression, and educating themselves about LGBTQ people and issues. That survey found that LGBTQ youth who felt high social support from their family in these ways reported less than half the number of suicide attempts 6 Friedman, M., Marshal, M., Guadamuz, T., Wei, C., Wong, C., Saewyc, C., and Stall, R., 2011: A Meta-Analysis of Disparities in Childhood Sexual Abuse, Parental Physical Abuse, and Peer Victimization Among Sexual Minority and Sexual Nonminority Individuals American Journal of Public Health 101, 1481_1494, https://ajph.apha publications.org/doi/full/10.2105/AJPH.2009. 190009. Pearson, J., Thrane, L., & Wilkinson, L. (2017). Consequences of runaway and thrown away experiences for sexual minority health during the transition to adulthood. Journal of LGBT Youth, 14(2), 145–171, https://www.tandfonline.com/doi/ full/10.1080/19361653.2016.1264909. For a review of risk factors impacting children in foster care see Matarese, M., Greeno, E. and Betsinger, A. (2017). Youth with Diverse Sexual Orientation, Gender Identity and Expression in Child Welfare: A Review of Best Practices. Baltimore, MD: Institute for Innovation & Implementation, University of Maryland School of Social Work, https://qiclgbtq2s. org/wp-content/uploads/sites/6/2018/05/LGBTQ2SLit-Review_-5-14-18.pdf. 7 ACF held two listening sessions with LGBTQI+ youth with lived experience in foster care on February 9, 2023, and December 18, 2023. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 34821 than LGBTQ youth who experienced low or moderate social support from their family.8 Another study quantified the negative impacts of family rejection of LGBTQ children, which can lead to greater representation in foster care.9 The study found that family behaviors, including excluding LGBTQ children from family events and activities because of their identity, not letting their child learn about their LGBTQ identity, or trying to change their child’s LGBTQ identity increased the risk of depression, suicide, illegal drug use, and other serious health risks. The study also found that family behaviors that support LGBTQ children, including standing up for their child when others mistreat them because of their LGBTQ identity, had positive outcomes, helped promote self-esteem, overall health, and protected against suicidal behavior, depression, and substance abuse. The study found that lesbian, gay, and bisexual young adults who reported high levels of family rejection during adolescence were more than eight times more likely to report having attempted suicide, nearly six times more likely to report high levels of depression, and more than three times more likely to use illegal drugs compared with their lesbian, gay, and bisexual counterparts from families that reported no or low levels of family rejection.10 Studies found improved health outcomes in youth whose caregivers demonstrated supportive behavior towards the child’s LGBTQ+ identity, including connecting the child to an LGBTQ+ adult role model.11 Moreover, caregiver behavior 8 The Trevor Project, 2022 National Survey on LGBTQ Youth Mental Health, https://www.thetrevor project.org/survey-2022/assets/static/trevor01_ 2022survey_final.pdf. 9 See Innovations Institute, University of Connecticut School of Social Work, Family Acceptance Project, and National SOGIE Center (n.d.). Parents & Families Have a Critical Impact on Their LGBTQ Children’s Health Risks & Well-Being [Fact Sheet]. Data for the fact sheet is drawn from Ryan, C (2021) Helping Diverse Families Learn to Support Their LGBTQ Children to Prevent Health and Mental Health Risks and Promote Well-Being, San Francisco, Family Acceptance Project, San Francisco State University. Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009). Family rejection as a predictor of negative health outcomes in white and latino lesbian, gay, and bisexual young adults. Pediatrics, 123(1), https://publications.aap.org/ pediatrics/article-abstract/123/1/346/71912/FamilyRejection-as-a-Predictor-of-Negative-Health? redirectedFrom=fulltext. 10 Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009). Family rejection as a predictor of negative health outcomes in white and latino lesbian, gay, and bisexual young adults. Pediatrics, 123(1), https://publications.aap.org/pediatrics/articleabstract/123/1/346/71912/Family-Rejection-as-aPredictor-of-Negative-Health?redirectedFrom= fulltext. 11 Ryan, C (2021) Helping Diverse Famiies Learn to Support Their LGBTQ Children to Prevent Health E:\FR\FM\30APR7.SGM Continued 30APR7 34822 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations that is not affirming, including refusing to use a child’s chosen name and pronouns, or ridiculing or name-calling because of the child’s LGBTQ+ identity, contributes to increased risks for serious health concerns for the child, such as depression, suicidal thoughts, suicidal attempts, and illegal drug use.12 Experience of LGBTQI+ Children in Foster Care lotter on DSK11XQN23PROD with RULES7 A meaningful body of research demonstrates that LGBTQI+ children in foster care face disproportionately worse outcomes and experiences than other children in foster care due to their specific mental health and well-being needs often being unmet. Further, evidence from qualitative studies, listening sessions, and Congressional testimony makes clear that many LGBTQI+ foster youth do not currently receive placements or services that are safe and proper, as required by statute.13 LGBTQI+ children in foster care report experiencing mistreatment related to their sexual orientation or gender identity. One study found that ‘‘one of the most consistent themes that LGBTQ youth in foster care have conveyed in focus groups and qualitative interviews is a tendency to be harassed, teased, and bullied by staff, peers, and [foster] care providers . . . LGBTQ youth are often excluded and rejected by their peers and caretakers . . . It is common for LGBTQ youth in group home and foster home settings to be isolated to their own bedroom or to their own wing of the house due to fears and Mental Health Risks and Promote Well-Being, San Francisco, Family Acceptance Project, San Francisco State University, https://lgbtqfamily acceptance.org/wp-content/uploads/2021/11/FAPOverview_Helping-Diverse-Families6.pdf. 12 Ibid. 13 For examples, see Weston Charles-Gallo testimony before the Ways and Means Committee Worker and Family Support Subcommittee Hearing on ‘‘Making a Difference for Families and Foster Youth,’’ May 12, 2021, https://www.congress.gov/ 117/meeting/house/112622/witnesses/HHRG-117WM03-Wstate-Charles-GalloW-20210512.pdf. Creating Safer Spaces for Youth who are LGBTQ in Broward County, Florida: Collecting SOGIE Data for Life-Coaching Services. Vol. 96, No. 1, Special Issue: Sexual Orientation, Gender Identity/ Expression, and Child Welfare (First of two issues) (2018), pp. 27–52 (26 pages), https://www.jstor.org/ stable/48628034. Mountz, S., Capous-Desyllas, M., & Pourciau, E. (2018). ‘Because we’re fighting to be ourselves:’ voices from former foster youth who are transgender and gender expansive. Child Welfare, Suppl.Special Issue: Sexual Orientation, Gender Identity/Expression, and Child Welfare, 96(1), 103– 125, https://www.proquest.com/scholarly-journals/ because-were-fighting-be-ourselves-voices-former/ docview/2056448509/se-2. ACF held two listening sessions with LGBTQI+ youth with lived experience in foster care on February 9, 2023, and December 18, 2023. VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 of placing them with youth of the same sex.’’ 14 Children in foster care who identify as LGBTQI+ are more likely to be placed in congregate care settings (group homes and residential care rather than family like settings), experience multiple placements, and have adverse experiences in their placement than non-LGBTQI+-identifying youth.15 One study found that LGBTQI+ youth in foster care are more likely to experience at least 10 foster care placements, with youth of color who are LGBTQ reporting the highest rates.16 A 2021 study showed that children in foster care who identify as LGBTQ+ report a perception of poor treatment by the foster care system more frequently than their non-LGBTQ peers and feel less frequently that they can be themselves.17 Children in foster care who identify as LGBTQI+ are less likely to report at least ‘‘good’’ physical and mental health and are less likely to have at least one supportive adult on whom they can rely for advice or guidance than their non-LGBTQI+ counterparts in foster care.18 In one study that looked at LGBTQ+ status-related discrimination, 37.7 percent of children in foster care ages 12 through 21 who identify as LGBTQ+ reported poor treatment connected to their gender expression, sexual minority status, or transgender status. The study also showed that LGBTQ+ foster youth were more likely than their nonLGBTQ+ foster youth counterparts to have been hospitalized for emotional 14 McCormick, A., Schmidt, K., and Terrazas, S. (2017) LGBTQ Youth in the Child Welfare System: An Overview of Research, Practice, and Policy, Journal of Public Child Welfare, 11:1, 27–39, DOI: 10.1080/15548732.2016.1221368, https://doi.org/ 10.1080/15548732.2016.1221368. 15 Wilson, B.D.M., & Kastanis, A.A. (2015). Sexual and gender minority disproportionality and disparities in child welfare: A population-based study. Children and Youth Services Review, 58, 11– 17, and Bianca D.M. Wilson, Angeliki A. Kastanis, Sexual and gender minority disproportionality and disparities in child welfare: A population-based study, Children and Youth Services Review, Volume 58, 2015, Pages 11–17, ISSN 0190–7409, https://doi.org/10.1016/j.childyouth.2015.08.016. 16 Poirier, J., Wilkie, S., Sepulveda, K. & Uruchima, T., Jim Casey Youth Opportunities Initiative: Experiences and Outcomes of Youth Who Are LGBTQ, 96.1 Child Welfare, 1–26 (2018), https://www.proquest.com/docview/2056448464. 17 Matarese, M., Greeno, E., Weeks, A., Hammond, P. (2021). The Cuyahoga youth count: A report on LGBTQ+ youth’s experience in foster care. Baltimore, MD: The Institute for Innovation & Implementation, University of Maryland School of Social Work, https://theinstitute.umaryland.edu/ media/ssw/institute/Cuyahoga-YouthCount.6.8.1.pdf. 18 Poirier, J., Wilkie, S., Sepulveda, K. & Uruchima, T., Jim Casey Youth Opportunities Initiative: Experiences and Outcomes of Youth Who Are LGBTQ, 96.1 Child Welfare, 1–26 (2018), https://www.proquest.com/docview/2056448464. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 reasons or been homeless at some point in their life.19 Research has also demonstrated strong correlations between LGBTQI+ children who spent time in foster care and who later experienced housing instability, homelessness, and food insecurity. LGBTQI+ youth who reported past housing instability or a current homeless episode were six times more likely to have been in foster care than LGBTQI+ youth who did not report any housing instability.20 These many findings illustrate the need for child welfare personnel and foster parents to be trained on their critical role in the lives of LGBTQI+ children to avoid re-traumatization and further victimization of children.21 Implementing strategic training and recruitment to meet the well-being needs of children who are LGBTQI+ is critical. Mental Health Needs of LGBTQI+ Children Research consistently shows that when LGBTQI+ youth experience supportive environments and services, they experience the same positive mental health outcomes as other youth.22 However, research demonstrates that LGBTQI+ youth in foster care face significant mental health disparities that result from experiences of stigma and discrimination. A 2020 survey found that LGBTQ youth in foster care were more than two and a half times more likely to report a past year suicide attempt than LGBTQ youth who were not in foster care, with 35 percent of LGBTQ foster youth reporting 19 Wilson, B.D.M., Cooper, K., Kastanis, A., & Nezhad, S. (2014), Sexual and Gender Minority Youth in Foster care: Assessing Disproportionality and Disparities in Los Angeles, The Williams Institute, UCLA School of Law, https://williams institute.law.ucla.edu/wp-content/uploads/SGMYouth-in-Foster-Care-Aug-2014.pdf. 20 DeChants, J.P., Green, A.E., Price, M.N., & Davis, C.K. (2021), Homelessness and Housing Instability Among LGBTQ Youth, West Hollywood, CA, The Trevor Project, https://www.thetrevor project.org/wp-content/uploads/2022/02/TrevorProject-Homelessness-Report.pdf. 21 For a review of best practices for child welfare practitioners, see Matarese, M., Greeno, E. and Betsinger, A. (2017). Youth with Diverse Sexual Orientation, Gender Identity and Expression in Child Welfare: A Review of Best Practices. Baltimore, MD: Institute for Innovation & Implementation, University of Maryland School of Social Work, https://qiclgbtq2s.org/wp-content/ uploads/sites/6/2018/05/LGBTQ2S-Lit-Review_-514-18.pdf. 22 Substance Abuse and Mental Health Services Administration (SAMHSA): Moving Beyond Change Efforts: Evidence and Action to Support and Affirm LGBTQI+ Youth. SAMHSA Publication No. PEP22– 03–12–001. Rockville, MD: Center for Substance Abuse Prevention. Substance Abuse and Mental Health Services Administration, 2023, https:// store.samhsa.gov/sites/default/files/pep22-03-12001.pdf. E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 such an attempt. Reports of past year suicide attempt rates were even higher among LGBTQ+ foster youth of color (38 percent) and non-binary and transgender foster youth (45 percent).23 One area of particular concern for the mental health of LGBTQI+ youth in foster care is possible exposure to sexual orientation or gender identity or expression change efforts (so-called ‘‘conversion therapy’’), as well as other actions to change, suppress or undermine a child’s sexual orientation, gender identity, or gender expression. Such efforts are not supported by credible evidence and have been rejected as harmful by the American Academy of Child and Adolescent Psychiatry, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, and the National Association of Social Workers, among others.24 The American Psychological Association (APA) has concluded that any behavioral health or other effort that attempts to change an individual’s gender identity or expression is inappropriate and, further, can cause harm and/or suffering. After reviewing scientific evidence on gender identity change efforts, harm, affirmative treatments, and professional practice guidelines, the APA has affirmed gender identity change efforts are associated with reported harm, and the APA opposes these practices because of their association with harm.25 Likewise, according to the APA, sexual orientation change efforts are ‘‘coercive, can be harmful, and should not be part of behavioral health treatment.26 A literature review by Substance Abuse and Mental Health Services Administration (SAMHSA) discussed in its 2023 report, ‘‘Moving Beyond Change Efforts: Evidence and Action to Support and Affirm LGBTQI+ Youth’’ concluded that [sexual orientation change efforts] were not effective and may cause harm.’’ It found that no research has ‘‘demonstrated that gender identity change efforts are effective in altering gender identity.’’ In 23 The Trevor Project, 2022 National Survey on LGBTQ Youth Mental Health, https://www.thetrevor project.org/survey-2022/assets/static/trevor01_ 2022survey_final.pdf. 24 Substance Abuse and Mental Health Services Administration, FAQs About Finding LGBTQI+ Inclusive Providers, https://www.samhsa.gov/ behavioral-health-equity/lgbtqi/faqs. 25 American Psychological Association, APA Resolution of Gender Identity Change Efforts, February 2021, https://www.apa.org/about/policy/ resolution-gender-identity-change-efforts.pdf. 26 American Psychological Association, APA Resolution on Sexual Orientation Change Efforts, February 2021, https://www.apa.org/about/policy/ resolution-sexual-orientation-change-efforts.pdf. VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 fact, the review found that ‘‘exposure to gender identity change efforts . . . is associated with harm, including suicidality, suicide attempt, and other negative mental health outcomes such as severe psychological distress.’’ 27 Current Approaches To Meet the Needs of LGBTQI+ Children in Foster Care Current approaches for meeting the needs of LGBTQI+ children in foster care vary across states and tribes. Some agencies use, or are working towards implementing, child welfare practice models that address the specific needs of LGBTQI+ children, in line with existing Federal statutory requirements applicable to all children in foster care. In 2023, the Child Welfare Information Gateway issued a report on ‘‘Protecting the Rights and Providing Appropriate Services to LGBTQI+ Youth in Out-ofHome Care’’ (‘‘Report’’).28 The Report provides a review of state laws, regulations, and policies related to reducing the negative experiences of any child who identifies as LGBTQI+, including laws and policies that support a child’s ability to be safe and free from discrimination; have access to needed care and services; and be placed in ‘‘safe and supportive’’ placement settings with caregivers who have received appropriate training. The Report found that 22 states and the District of Columbia require agencies to provide youth who identify as LGBTQI+ with services and supports that are tailored to meet the specific needs of an LGBTQI+ child, such as providing clothing and hygiene products and referring to the child by the name and pronouns that align with their gender identity. The Report found that eight states and the District of Columbia offer developmentally appropriate case management that helps child welfare workers support LGBTQI+ youth. The Report found that fifteen states and the District of Columbia require training on LGBTQI+ issues for foster caregivers and related staff, including on how to communicate effectively and professionally with youth who identify as LGBTQI+, and education on current social science research and common 27 Substance Abuse and Mental Health Services Administration (SAMHSA): Moving Beyond Change Efforts: Evidence and Action to Support and Affirm LGBTQI+ Youth. SAMHSA Publication No. PEP2203–12–001. Rockville, MD: Center for Substance Abuse Prevention. Substance Abuse and Mental Health Services Administration, 2023, https://store.samhsa.gov/product/moving-beyondchange-efforts-evidence-and-action-support-andaffirm-lgbtqi-youth/pep22-03-12-001. 28 Child Welfare Information Gateway, Protecting the Rights and Providing Appropriate Services to LGBTQIA2S+ Youth in Out-of-Home Care, 2023, https://www.childwelfare.gov/topics/systemwide/ laws-policies/statutes/LGBTyouth/. PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 34823 risk factors for LGBTQI+ youth experiencing various negative outcomes. However, the Report also demonstrates that a majority of title IV– E/IV–B agencies do not have laws, regulations, or policies to make appropriate services and supports or Designated Placements available to an LGBTQI+ child in foster care. Without such laws or policies, agencies may not adequately meet statutory requirements that guarantee that LGBTQI+ children in foster care, like all foster children, receive a safe and proper placement. In March 2022, ACF published Information Memorandum (IM) ACYF–CB–IM–22– 01, which included suggestions on how agencies could best provide services and supports to each LGBTQI+ child who is at risk of entering or is in foster care.29 ACF believes this final rule will help address the extensively documented risk factors and adverse outcomes for LGBTQI+ children in foster care. III. Regulatory Provisions and Responses to Comments Summary of Commenters The comment period for the NPRM was open for 60 days and closed on November 27, 2023. We received a total of 13,768 comments consisting of: • Comments from 15 state or local child welfare agencies and governmental entities, such as state attorneys generals (AG) and a state civil legal aid office; • Two letters representing 26 congressional members; • Comments from 65 advocacy organizations, providers, and university institutes; and • 13,536 comments from individuals, more than 12,000 of which consisted of two form letters, one in support and one in opposition. We also received comments that were submitted on a different NPRM, were out of scope, or were duplicate submissions, and will therefore not be addressed. No comments were received by the deadline from Indian Tribes, Tribal organizations or consortiums, or organizations that represent Tribal interests. The comments are available in the docket for this action on https:// www.regulations.gov/docket/ACF-20230007/comments. We reviewed and analyzed all of the NPRM comments and considered them in finalizing this rule. Below is a summary of comments received. We include a detailed 29 Children’s Bureau, Guidance for Title IV–B and IV–E Agencies When Serving LGBTQI+ Children and Youth, March 2, 2022, https://www.acf.hhs.gov/ cb/policy-guidance/im-22-01. E:\FR\FM\30APR7.SGM 30APR7 34824 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations response to comments in section IV of this preamble. lotter on DSK11XQN23PROD with RULES7 Summary of Comments by Commenter Type Summary of Comments From State and Local Child Welfare Agencies Four states or government entities expressed support: three were supportive of ACF’s goal to improve care for LGBTQI+ children but also expressed concerns and recommended substantive changes to the proposal, and one expressed a neutral position. The supporters expressed that they are currently undertaking efforts to meet the needs of LGBTQI+ children in foster care, such as state-level nondiscrimination laws, a foster children’s bill of rights, resource groups for LGBTQI+ community outreach, requiring providers to demonstrate an ability to support LGBTQI+ children, and training for their workforce on cultural competency and sensitivity related to sexual orientation and gender identity. State agencies and governments who supported the rule expressed appreciation for the efforts of HHS to establish protections for LGBTQI+ children in foster care. They also supported some of the NPRM’s requirements around assessing that placements meet the unique needs of LGBTQI+ children, reporting concerns with such placements, and placing children in sex-segregated child care institutions according to their gender identity. Four states or government entities and the three letters representing 20 state attorneys general opposed the proposal. The state agencies and governments who opposed the rule stated a general belief that the NPRM creates a separate and distinct process for LGBTQI+ children that violates privacy and raised concerns related to the religious beliefs of providers. Additional concerns raised included that the NPRM would require an ‘‘upfront’’ conversation about a child’s sexual orientation and gender identity instead of allowing a child to decide when to share this information with their case worker. Those states or entities who opposed the NPRM also argued that it creates a ‘‘cumbersome fix’’ for a problem that lacks clear definition while states are currently having issues finding enough providers for all children in foster care. They also argued that the NPRM’s provisions would disincentivize families who may object to providing specially designated care for LGBTQI+ children from serving as foster parent providers and would ‘‘drive individuals and organizations of faith away.’’ They also expressed VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 concerns that most congregate care providers are not currently equipped to meet the provisions around placing children according to their gender identity. Finally, there were objections to what they saw as unfunded burdens on the agencies to develop new trainings, modify licensing and placement rules, and revise case management systems to track placements, notifications, and other requirements in the NPRM. Letters from State attorneys general raised legal concerns that the NPRM violates various statutory and constitutional requirements; these concerns are addressed in section IV. Suggestions for revisions from state and local child welfare agencies and Government entities included: • Expanding the approach proposed in the NPRM to apply the process to report placement concerns and provide notice to all children in foster care and not only to those specified in the NPRM, such as those over age 14; • Providing clear guidance related to all of the rule’s requirements and specifically the treatment of kin placements; • Providing more funding to establish or enhance services for LGBTQI+ children within the states; in rural areas; and for recruitment, retention, and training of child welfare workers and foster care providers; and • Replacing specific terms or phrases to broaden or provide flexibility to certain requirements, such as replacing ‘‘retaliation’’ with ‘‘discrimination’’ and replacing ‘‘age-appropriate’’ with ‘‘developmentally appropriate.’’ Summary of Comments From Congressional Members Two sign-on letters from a total of 26 congressional members expressed opposition to the NPRM. They generally expressed a belief that the NPRM imposes mandates on a subset of children based exclusively on the child’s gender identity and sexual orientation while there are no Federal policies that define ‘‘safe and proper care’’ for other children with unique characteristics, such as those living with a disability. They argued that the proposed rule would dissuade families of faith from being foster parents, thus impacting availability of foster care placements and that the training requirements would impact availability of caseworkers. They also expressed concern that the proposed rule will impose ‘‘significant financial and administrative burdens’’ on title IV–E agencies. They expressed concerns about the NPRM’s requirements for transgender children and that placing PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 children according to their gender identity could result in children being placed in settings ‘‘they find uncomfortable and invasive or, at worst, unsafe.’’ Summary of Comments From Advocacy Organizations, Providers, and Universities Of the 65 advocacy organizations, providers, and university institutions that commented, 34 were supportive of the Department’s goal to improve care for LGBTQI+ children but also recommended substantive changes to the proposal. Seven expressed support without recommending changes to the proposal, and 24 opposed. Those organizations, providers, and university institutions who supported the rule without making changes concurred with the research summarized in the NPRM that demonstrates the complex challenges faced by LGBTQI+ children in foster care and agreed that the NPRM would help prevent discrimination and retaliation against LGBTQI+ children by allowing them to express their identities without fear of discrimination. They argued that the NPRM balances the exercise of religion with the need to ensure child wellbeing and represents an essential step towards creating an inclusive and supportive child welfare community. Some of the providers who commented expressed support for the NPRM and outlined the programs, policies, and procedures that they currently undertake to assist LGBTQI+ children in foster care. These practices included training kin caregivers and families of origin on affirming care, helping youth identify lasting affirming connections, having a mix of residential facilities for children, and training for facilities staff. The 34 advocacy organizations, providers, and university institutes that expressed general support but also concerns with the NPRM’s requirements appreciated ACF’s commitment to ensuring that LGBTQI+ children in foster care are protected from harm. They agreed that LGBTQI+ children are overrepresented in the child welfare system and appreciated that ACF’s summary of research documents the discrimination and challenges LGBTQI+ children in foster care face. However, some of the advocacy organization and providers that commented expressing overall support also raised concerns about the approach of the NPRM and some stated that it was vague, lacking clarification at various decision-making points, and would negatively impact the availability of providers, specifically kin and religious E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations providers. Commenters raised concerns over freedom of religion and the legality of the NPRM’s proposed requirements. Several organizations argued the NPRM as drafted could harm, instead of help, LGBTQI+ children in foster care. Specific concerns about the NPRM raised by these commenters include that the proposed rule added a layer of bureaucracy on child welfare agencies; may present a burden for kin caregiver providers to meet; creates a ‘‘two-tiered system’’ where non-LGBTQI+ children have an expectation of safety anywhere, but for LGBTQI+ children only certain placements are ‘‘safe and appropriate’’; places the onus on children to request a placement change, requiring them to disclose their identity when they may not feel comfortable doing so; did not explicitly contain anti-discrimination policies; lacked additional funding to implement the rule’s requirements; and questioned whether CFSR would be the best mechanism for monitoring. As with all comments noted in these summaries, these concerns are addressed in the comment and response section that follows. A number of the commenters who opposed the NPRM said that, while they agreed that every child in foster care should feel safe and be in a hostility-free environment, they were concerned that the NPRM only applied to LGBTQI+ children. Those that opposed generally argued the NPRM infringes upon religious liberties, questioned whether it was legal in its approach, and stated it minimized the contributions of faithbased providers. Some providers who submitted comments said the NPRM would have ‘‘unintended consequences’’ such as exacerbating the placement shortage. They also argued the NPRM was overly broad and vague, for example stating that not defining ‘‘hostility, mistreatment, and abuse’’ was ‘‘deliberate’’ to enable labeling providers as unsafe for ‘‘simply disagreeing with the state’s so-called ‘appropriate’ method for caring for LGBT children.’’ They expressed concern that the NPRM would preclude ‘‘reasonable efforts’’ to help children think through their ‘‘current feelings and assumptions’’ arguing that foster parents should be free to offer their views. They also expressed concerns that ‘‘age-appropriate services and supports’’ could require genderaffirming care for transgender minors, which they argued creates various risks for children and should not be provided. Some commenters said that the NPRM’s provision to place children according to their gender identity would ‘‘threaten girls’ privacy’’ and that VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 requiring use of a youth’s chosen pronouns is a violation of free speech. A few commenters suggested instead creating a certification process for providers who have undergone training to be particularly supportive and affirming for LGBTQI+ children in foster care, such as something similar to having training to be a therapeutic foster care placement. Summary of Comments From Individual Commenters As noted earlier, we received approximately 13,536 comments from individuals, more than 12,000 of which consisted of two form letters. Of those, over 1,700 form letters expressed support, and over 10,000 form letters expressed opposition. Additionally, over 100 non-form letters expressed support, over 1,300 non-form letters expressed opposition, and 25 non-form letters expressed a neutral position. In general, the supportive commenters agreed that LGBTQI+ children are overrepresented in foster care, applauded HHS for requiring agencies to maintain enough safe and appropriate placements for LGBTQI+ children, and expressed their belief that this rule would be a ‘‘huge step forward’’ in keeping children safe. They also agreed that LGBTQI+ foster children should not be subjected to abuse or discrimination, including by placements that practice ‘‘conversion therapy.’’ Some commenters stated that agencies have no policies that protect LGBTQI+ children in foster care and that the proposals in the NPRM will create important mandates for agencies and providers. Others expressed that ensuring that providers are trained and equipped with skills to provide for a child’s needs regarding sexual orientation and gender identity is the ‘‘next step in improving the well-being of the LGBTQI+ youth in foster care.’’ Supportive commenters asked who will define ‘‘safe and proper care.’’ Commenters who expressed opposition expressed a belief that the approach taken in the NPRM would harm, rather than help, children in foster care. They argued that it would disqualify most faith-based providers and label people of faith and religious organizations as ‘‘unsafe’’ and ‘‘inappropriate.’’ The individuals and anonymous commenters who opposed the NPRM expressed concerns that the proposal would reduce the number of available providers, exacerbate the placement shortage, and discourage religious families and individuals from becoming foster parents or seeking employment in the child welfare profession. There were also a substantial PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 34825 number of commenters who appeared to misunderstand or misinterpret the NPRM’s provisions, including a substantial number of comments discussing the appropriateness or lack thereof of gender-affirming care for children. These comments are outside the scope of the rule because this rule does not establish any particular standard of medical care or require that anyone receive any particular medical services. The 25 commenters who expressed neutral positions shared personal stories of their experience with LGBTQI+ children or foster care, views on child rearing, or generally that placements should be free from hostility and mistreatment. Section by Section Discussion of Regulatory Provisions We respond to the relevant comments we received in response to the NPRM in this section-by-section discussion. Title and Definition of LGBTQI+ In the proposed rule we proposed the title of § 1355.22 to be ‘‘Placement requirements under titles IV–E and IV– B for children who identify as lesbian, gay, bisexual, transgender, queer or questioning, intersex, as well as children who are non-binary or have non-conforming gender identity or expression.’’ The proposed rule used the terms ‘‘LGBTQI+ status’’ and ‘‘LGBTQI+ identity’’ in various locations to refer to LGBTQI+ children. Comments: Some commenters encouraged ACF to amend the rule to explicitly include other identities—such as children who are Two Spirit—to be as inclusive as possible and provide clarity for providers. Some commenters encouraged ACF to explicitly include children with a variation in sex characteristics in addition to intersex children, as not all such children identify as intersex. Other commenters encouraged ACF to include protections based on ‘‘LGBTQI+ identity’’ in addition to ‘‘LGBTQI+ status’’ to provide maximum clarity about which children are entitled to Designated Placements. Response: ACF agrees that addressing the needs of Two Spirit youth in the child welfare system is an important part of this regulation. ACF also agrees with the importance of providing clarity to title IV–E/IV–B agencies and providers about the meaning of the term ‘‘LGBTQI+.’’ For the purposes of this rule, the term refers to children who identify as lesbian, gay, bisexual, transgender, queer or questioning, intersex, as well as children who are non-binary, Two-Spirit, or have non- E:\FR\FM\30APR7.SGM 30APR7 34826 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 conforming gender identity or expression, all of whom are referred to under the umbrella term of LGBTQI+ for this regulation. For streamlining purposes, ACF updated the final rule’s regulatory text to read ‘‘LGBTQI+ children (including children who are lesbian, gay, bisexual, transgender, queer or questioning, and intersex).’’ The word ‘‘including’’ clarifies that the umbrella term LGBTQI+ includes children who are non-binary, Two-Spirit, or have nonconforming gender identity or expression as well. We also agree with commenters that the use of both ‘‘LGBTQI+ status’’ and ‘‘LGBTQI+ identity’’ offers greater clarity. The term ‘‘LGBTQI+ status’’ is frequently used in reference to protecting LGBTQI+ individuals from discrimination, harm, and mistreatment based on their ‘‘LGBTQI+ status.’’ Protecting a child from mistreatment based on their ‘‘LGBTQI+ status’’ would include protections should the child disclose their LGBTQI+ identity, should a third party identify a child as LGBTQI+, or should the child be perceived as having an LGBTQI+ identity. Other sections of the NPRM provided protections to children based on their ‘‘LGBTQI+ identity.’’ The term ‘‘LGBTQI+ identity’’ is frequently used when a person self-identifies as LGBTQI+. For this final rule, ACF uses the term ‘‘LGBTQI+ status or identity,’’ and any reference to LGBTQI+ children is intended to include both children with LGBTQI+ status and LGBTQI+ identity. For brevity, ACF has revised the title of this final regulation to be ‘‘Designated Placement requirements under titles IV–E and IV–B for LGBTQI+ children.’’ In regard to questions about children with variations in sex characteristics, ACF acknowledges that not all children with variations in sex characteristics self-identify with the term intersex but believes that the term LGBTQI+ provides sufficient clarity that the rule’s protections apply to such children. Final Rule Change: ACF updated the title of the regulation to ‘‘Designated Placement requirements under titles IV– E and IV–B for LGBTQI+ children’’ and updated the rule text to read ‘‘LGBTQI+ children (including children with lesbian, gay, bisexual, transgender, queer or questioning, and intersex status or identity).’’ Section 1355.22(a) Protections Generally Applicable In § 1355.22(a)(1) of the proposed rule, ACF proposed to require that title IV–E/IV–B agencies ensure that a safe and appropriate placement is available VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 for and provided to all children in foster care, including each LGBTQI+ child in foster care. The proposed rule referred to specially designated placements for LGBTQI+ children in foster care as ‘‘Safe and Appropriate’’ placements. The NPRM proposed that a ‘‘Safe and Appropriate’’ placement for an LGBTQI+ child would be a placement in which (1) the provider will establish an environment free of hostility, mistreatment, and abuse based on the child’s LGBTQI+ status; (2) the provider is required to be trained on the appropriate knowledge and skills to provide for the needs of the child related to the child’s self-identified sexual orientation, gender identity, and gender expression; and (3) the provider will facilitate the child’s access to ageappropriate resources, services, and activities that support their health and well-being. The NPRM further clarified that providers would not be required to be ‘‘Safe and Appropriate’’ as the rule does not compel any particular provider to seek a special designation to provide supportive care to LGBTQI+ children. Comments: Numerous commentors, including those who supported and opposed the requirements of the proposed regulation, provided recommendations for using clearer terminology in the final rule. Some commenters suggested that every child is already entitled to a safe and appropriate placement under Federal child welfare law, and that the final rule should clarify that this requirement applies to all children in foster care, not just to children in specially designated placements for LGBTQI+ children. A number of commenters were opposed to applying the protections in paragraph (a) of the NPRM only to LGBTQI+ children for various reasons, including that it could appear that LGBTQI+ children are provided protections not guaranteed to others. Another commenter stated that there are no other Federal policies that define how a state must provide ‘‘safe and proper care’’ to children of other unique circumstances. Many commenters expressed concern with the terminology ‘‘safe and appropriate’’ placements, interpreting that such a placement was only available to LGBTQI+ children. One commenter expressed the belief that using the term ‘‘safe and appropriate’’ permits the state to place the child with caregivers who are merely tolerant of the child’s sexual orientation or gender identity rather than in a home that is fully supportive. Commenters stated the rule does not go far enough to affirm children, and that the ‘‘free from PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 hostility, mistreatment, and abuse’’ threshold was insufficient. A number of commenters recommended that the final rule should require all placement providers to meet the requirements to be a safe and appropriate placement, unless they obtain a waiver based on a religious objection. Other commenters argued that unless all placement providers are required to be supportive, some LGBTQI+ foster children will not receive the benefit of such placements because they are not comfortable disclosing their identity to their caseworker. Conversely, many commenters wrote that the proposed rule relies on a false assumption that only placements that support a child’s LGBTQI+ identity are safe and proper. A commenter explained that the proposed rule would create a two-tiered system for both foster families and child-placing agencies in which consideration is given to homes that promote a liberal view of sexuality and gender. Commenters stated that this could particularly impact providers with religious beliefs and viewpoints that oppose same-sex marriage and believe that there are only two genders, for example. One commenter stated that, absent clear definitions and parameters for a safe home, foster families who hold certain religious convictions are at risk of being inappropriately deemed unsafe. One commenter stated that a foster family should not have to agree with a child’s beliefs and that the foster parent’s belief regarding sexuality and gender identity does not compromise their ability to provide safe and appropriate care for non-LGBTQI+ children. Response: ACF appreciates commenters’ views and suggestions. ACF agrees that the terminology used in the NPRM, which referred to placements that are specially designated for LGBTQI+ children as ‘‘Safe and Appropriate,’’ needed clarification. First, consistent with comments received, ACF confirms that Federal law requires all foster care placements to be safe and appropriate. ACF did not intend to suggest otherwise with the terminology it used in the NPRM. The agency sought to clarify how these Federal statutory requirements should be met in the context of LGBTQI+ children who, as the preamble to this rule demonstrates, have specific needs related to placements and services. One important aspect of a safe and appropriate placement for all children is that the placement be free of harassment, mistreatment, and abuse, and at 45 CFR 1355.22(a), we have incorporated regulatory language E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations making clear that this requirement applies to all children in all placements, including LGBTQI+ children. We discuss the change to using the term ‘‘harassment’’ rather than the term ‘‘hostility’’—the term we had employed in the NPRM—below. Second, ACF acknowledges the concerns of commenters that families who do not meet or seek to meet specified requirements to serve as a designated provider for LGBTQI+ children could be mislabeled as ‘‘unsafe’’ under the terminology of the proposed rule. ACF acknowledges the particular concerns of faith-based providers and families of faith who serve as foster families. We appreciate the vital role that many families and providers of faith play in the child welfare system, and ACF is committed to upholding Federal legal protections for religious exercise, free speech, or conscience as further discussed in the ‘‘Response to Comments Raising Statutory and Constitutional Concerns’’ section of this preamble. In response to these concerns, HHS has revised the terminology used in the final rule. The rule now uses the phrase ‘‘Designated Placements’’ as shorthand to refer to providers that are specially designated to serve LGBTQI+ children because they have made a set of commitments and undergone training to better meet the needs of LGBTQI+ children. State and Tribal agencies must have available a sufficient number of these placements as part of their responsibilities to satisfy the statutory requirement that all children in foster care have access to a safe and appropriate placement. ACF disagrees with commenters who asserted that placements that affirm the identity of LGBTQI+ children are not beneficial for the child. As described in the introductory section of this preamble addressing Mental Health Needs of LGBTQI+ Youth, an extensive body of research consistently shows that when LGBTQI+ youth experience supportive environments and services, they experience the same positive mental health outcomes as other youth. Further, evidence from studies, listening sessions, and Congressional testimony makes clear that many LGBTQI+ foster youth do not currently receive placements or services that are safe and appropriate, as required by statute. In view of the data, ACF disagrees with the commenter’s view that supportive placements are not necessarily desirable for safe and appropriate placement of children. Comments: Multiple commenters asked for clarification of what specific requirements would apply to placement VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 providers (i.e., foster family homes, child care institutions) that do not choose to become Designated Placements for LGBTQI+ children. Commenters asked that ACF provide examples of what such providers would and would not be required to do. For example, some commenters vocalized the importance of allowing placement providers to talk with children about their own feelings, and to have the ability to offer alternative viewpoints to LGBTQI+ children. Conversely, many commenters also suggested that the rule be expanded to require that all foster parents should be able to meet the needs of any child who enters their home to ensure that all children, including those who identify as LGBTQI+, are able to thrive in care. Response: As noted above, ACF appreciates the opportunity to clarify that all children in foster care are entitled to safe and appropriate care under Federal law, regardless of whether they are LGBTQI+ or not, and if they are LGBTQI+, regardless of whether they are in a Designated Placement. Titles IV–E and IV–B of the Act provide protections that are designed to ensure that while in foster care, all children receive ‘‘safe and proper care’’ (Social Security Act section 475(1)(B), 42 U.S.C. 675(1)(B)). Specifically, as part of its title IV–E and IV–B plans, an agency must develop a case plan for each child in foster care that, among other things, assures that the child receives ‘‘safe and proper’’ care and ‘‘address(es) the needs of the child while in foster care’’ (Id.). This statutory process includes a ‘‘discussion of the appropriateness of the services that have been provided to the child under the plan’’ (Id.). Similarly, the title IV–E/IV–B case review system requires that the agency have procedures for assuring that each child has a case plan designed to achieve placements in the most appropriate setting available, consistent with the best interests and special needs of the child (Social Security Act sections 422(b), 471(a)(16), 475(1)(B), and 475(5), 42 U.S.C. 622(b), 671(a)16), and 675(5)). The responsibility to develop and implement foster children’s case plans lies with the child welfare agency. Child welfare agencies assign foster children to placement providers in accordance with their case plans. These decisions are individualized and take many aspects of a child’s circumstances into account. These general protections for safe and appropriate foster care placements apply to all placements and all children. ACF appreciates the opportunity to further clarify what these general PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 34827 statutory provisions require. These statutory terms, which apply to all placements, at a minimum mean that the placement must be free from harassment, mistreatment, and abuse— including related to a child’s sexual orientation, gender identity, or LGBTQI+ status. In this final rule, we use the term ‘‘harassment’’ in place of the term ‘‘hostility’’ used in the proposed rule. We agree with the concern, articulated by commenters, that the term ‘‘hostility’’ is insufficiently clear to provide guidance to providers. By using the term ‘‘harassment,’’ we seek to clarify that the general protections focus on the provider’s conduct; a provider will not violate this rule simply because of the view or beliefs the provider may have or by good-faith and respectful efforts to communicate with LGBTQI+ children about their status or identities. Under its settled meaning in the law, the concept of harassment requires conduct that is sufficiently severe or pervasive to create an unsafe or hostile environment based on the child’s characteristics. See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (‘‘When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.’’) (citation omitted). Of course, children in foster care are especially vulnerable and rely on their providers to provide a supportive and protective environment. Protecting LGBTQI+ children from harassment, mistreatment, or abuse in all foster care placements is of particular importance given the vulnerability of these children. For example, as described in the preamble to this rule, a significant body of evidence demonstrates a connection between the risk that a LGBTQI+ child will consider or attempt suicide and the conduct and treatment of their caregivers towards the child’s sexual orientation or gender identity. A 2009 study cited above showed that ‘‘LGB young adults who reported higher levels of family rejection during adolescence were 8.4 times more likely to report having attempted suicide [and] 5.9 times more likely to report high levels of depression’’ compared with children of families of low or no such behaviors.30 Application of the legal 30 Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009). Family rejection as a predictor of negative health outcomes in white and latino lesbian, gay, and bisexual young adults. Pediatrics, 123(1), https://publications.aap.org/pediatrics/articleabstract/123/1/346/71912/Family-Rejection-as-a- E:\FR\FM\30APR7.SGM Continued 30APR7 lotter on DSK11XQN23PROD with RULES7 34828 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations definition of harassment must necessarily attend to this context. See Oncale, 523 U.S. at 81(1998) (determination of harassment ‘‘requires careful consideration of the social context in which particular behavior occurs and is experienced by its target’’). Harassment does not include an isolated hurtful remark or action. But it can include deprivation of key resources. See id. at 650–651 (actionable harassment exists when it keeps ‘‘female students from using a particular school resource—an athletic field or a computer lab, for instance’’). Conduct need not physically deprive an individual of such a resource to constitute harassment; harassment includes conduct that so undermines and detracts from the victims’ . . . experience [with the program], that the victim[s] are effectively denied equal access to [the program’s] resources and opportunities.’’ Id. at 651. Harassment, mistreatment, or abuse of any child in foster care is impermissible in any placement. A provider that harasses a child about that child’s religious beliefs or practices violates the general guarantee that all foster placements must be safe and appropriate. Similarly, a provider that harasses a child about that child’s LGBTQI+ status or identity violates the same guarantee. In response to commenters who sought clarity about what conduct would or would not be permissible in placements that had not sought designation as a Designated Placement, ACF appreciates that some providers, like some caregivers, parents, and kin, may struggle to understand an LGBTQI+ child’s identity, or have questions or concerns about a child’s wellbeing upon learning that a child in their care is LGBTQI+. Good-faith and respectful efforts to engage children appropriately do not constitute harassment, mistreatment, or abuse. However, though the inquiry must be fact specific, providers can cross the line into harassment, mistreatment, or abuse if they are found to have engaged in behaviors such as punishing the child, subjecting the child to harsher rules, or excluding the child from community activities because they are LGBTQI+; or disparaging the child, calling them shameful, or using slurs or derogatory language because they are LGBTQI+. Such conduct can also constitute prohibited retaliation as outlined in paragraph (d) of this rule. Predictor-of-Negative-Health?redirectedFrom=full text. VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 ACF understands that many providers will be learning over time how to best engage LGBTQI+ children. As discussed below at Section 1355.22(b)(3) Placement and Services Decisions and Changes, ACF recognizes that some providers may be willing to accept and benefit from additional resources and training in order establish a supportive environment for an LGBTQI+ child. ACF will provide technical assistance and guidance to agencies to support training and resources for providers who desire such training. ACF again notes that good-faith and respectful efforts to communicate with LGBTQI+ children about their status or identity do not constitute harassment, mistreatment, or abuse. Additionally, consistent with the proposed regulation, this final rule requires that the title IV–E/IV–B agency ensure that no LGBTQI+ child experience retaliation in any placement, including those that are not Designated Placements. Revisions to the rule’s nonretaliation provisions are described below. Accordingly, if a placement provider were to engage in (or attempt to engage in) retaliation against an LGBTQI+ child, the title IV–E/IV–B agency must take steps to protect the child from such retaliation. Depending on the circumstances and child’s wishes, those steps could include moving the child to a new Designated Placement. ACF reiterates that the final rule does not directly regulate the actions of individual foster care providers, as title IV–E/IV–B agencies are responsible for ensuring that each placement the agency makes meets requirements that it is safe and appropriate. As with all provisions of this rule, caseworkers who make individualized placement decisions about each child in foster care will make case-by-case determinations about which placement is in the best interest of the child to implement the requirements of Federal statutory protections as well as this rule. ACF reiterates that this rule does not prohibit individuals and organizations from continuing to participate as foster care providers if they do not wish to serve as Designated Placements. Although states and tribes must have sufficient Designated Placements for LGBTQI+ children, the final rule does not require any placement to meet the requirements of a Designated Placement. The fact that a given provider has not sought to become a Designated Placement is not evidence that the provider has engaged in harassment, mistreatment, or abuse. We have added a new provision at § 1355.22(j), which states that nothing in this rule requires PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 or authorizes a State to penalize a provider in the state’s titles IV–E and IV–B program because the provider does not seek or is determined not to qualify for the status of a Designated Placement under this rule. Consistent with the NPRM, this rule also requires that placement providers who have not chosen to become Designated Placements for LGBTQI+ children are informed of the procedural requirements to comply with the rule, including the non-retaliation provision, described below. Comment: Many commenters said the proposed rule did not define the terms ‘‘hostility,’’ ‘‘mistreatment,’’ and ‘‘abuse’’ and sought clarity on their meaning. One commenter suggested the final regulations provide greater specificity about what actions by providers/social workers cannot be permitted because they undermine, rather than create safe and appropriate spaces for, LGBTQI+ and other children. Response: As described elsewhere in this preamble, we are clarifying that as part of meeting the requirement to provide a safe and appropriate placement for all children in foster care, the title IV–E/IV–B agency must ensure that placements, including those for LGBTQI+ children, are free from harassment, mistreatment, or abuse. As we explain above, we now use the term ‘‘harassment’’ in place of the term ‘‘hostility’’ used in the NPRM in response to requests from commenters for greater clarity. Applying the ‘‘harassment, mistreatment, or abuse’’ test advances the goal of providing a safe environment to children while ensuring that agency staff and foster care providers will not violate those general protections simply for holding any view or belief or for good-faith and respectful efforts to communicate with LGBTQI+ children about their status or identity. Since those requirements and all of the rule’s retaliation requirements apply to all foster care placements, they also necessarily apply to all placement providers, including Designated Placements. We note, as well, that the final rule’s non-retaliation provision is not limited to providers. Thus, similar actions by caseworkers would also be prohibited by this rule. And because the general protections apply to all children, this final rule prohibits harassment, mistreatment, or abuse even when not directed against a child based on LGBTQI+ status or identity. For example, harassment of a child because of their religious beliefs or cultural practices would violate those general statutory protections. For further discussion of these issues, we refer the reader to the beginning of this section. E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 Final Rule Changes: We have revised the final rule so that 45 CFR 1355.22(a) now provides that as part of meeting the requirement to provide a safe and appropriate placement for all children in foster care, the title IV–E/IV–B agency must ensure that placements, including those for LGBTQI+ children, are free from harassment, mistreatment, or abuse. Section 1355.22(b)(1) Designated Placements and Services for LGBTQI+ Children The NPRM preamble explained that title IV–E/IV–B agencies should have a sufficient number of placements specially designated to serve LGBTQI+ children throughout their foster care system to meet the requirement of the proposed rule to ensure that a safe and appropriate placement is available for and provided to each LGBTQI+ child in foster care. Comments: Several commenters asked for clarification on preamble language regarding ‘‘sufficient placements.’’ For the determination of ‘‘sufficient’’ placements, they expressed concern that, in their view, the NPRM preamble failed to clearly articulate how agencies must determine whether their networks would include enough providers. Commenters cautioned that depending on how sufficient numbers are calculated, educational continuity and keeping children in their communities could be undermined. Commenters also stated the proposed rule failed to clarify how different placement types would be factored into determinations of sufficient numbers of providers. One commenter emphasized the need for geographic representation of placements. Response: As noted above, the final rule clarifies that all providers must be safe and appropriate for all children. Title IV–E/IV–B agencies need to have sufficient Designated Placements to be responsive to the needs of LGBTQI+ children. Consistent with the proposed rule, this final regulation does not prescribe a specific number of Designated Placements that will be needed in a given child welfare program. Title IV–E/IV–B agencies are in the best position to determine the number of such placements that will be required to meet their local needs and comply with this regulation. Accordingly, the regulation does not mandate a specified number of placements, but rather mandates what the title IV–E/IV–B agency must do to provide access to Designated Placements. The title IV–E/IV–B agency will need to determine the number of placements needed to meet these VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 requirements. In recognition of the diversity of programs and local contexts across the Nation, we are not seeking to establish a uniform, standard requirement that applies to all jurisdictions and populations. Each state and tribe is unique and best suited to identify their placement needs and how to meet the provision in the final rule based on considerations such as variation in population; geographical disbursement including rural, remote, and urban populations; and the number of children in need of foster care placements, among other consideration. ACF encourages agencies to use data, modeling, and case work to estimate how many Designated Placements may be needed. ACF will provide further technical assistance to states and tribes to help them achieve this requirement. As we discuss below, this final rule clarifies that nothing in this rule shall be construed to require or authorize a state or tribe to penalize a provider in the title IV–E and IV–B program because the provider does not seek or is determined not to qualify as a Designated Placement under this rule. The final rule also clarifies the requirements for a placement to be considered a Designated Placement for LGBTQI+ children. First, in addition to the protections generally applicable, the provider must commit to establish an environment that supports the child’s LGBTQI+ status or identity. We have added the term ‘‘commit’’ to reflect that assent to this designation will be documented by title IV–E/IV–B agencies and in recognition that current placements, working toward designation as part of a placement stabilization plan, may express their commitment while working to establish the environment as described in the rule. The criteria for Designated Placements include provider training as discussed below. Finally, a Designated Placement must facilitate the child’s access to age- or developmentally appropriate resources, services, and activities that support their health and well-being. Provider Training for Designated Placements The proposed rule clarified that for a placement to be considered specially designated for an LGBTQI+ child, the provider must be ‘‘trained to be prepared with the appropriate knowledge and skills to provide for the needs of the child related to the child’s self-identified sexual orientation, gender identity, and gender expression.’’ In the NPRM, we requested comments on how ACF can ensure training curriculums for foster care providers are of high quality. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 34829 Comment: Many commenters responded with recommendations on how ACF can ensure training curricula for foster care providers are of high quality. Many commenters recommended ACF work with LGBTQI+ youth with lived experience and other experts in the community to develop core elements that should be presented in high quality trainings. One commenter recommended that trainings and measures of success should be reviewed and evaluated by LGBTQI+ youth with lived experience. Several commenters recommended ACF ensure trainings are certified by organizations with experience serving LGBTQI+ children. One commenter recommended ACF develop a set of guidelines for placement providers’ trainings to ensure the trainings address a robust set of topics. One commenter recommended ACF create a few standards for key concepts that must be included in trainings, at minimum, and discuss how to create supportive and inclusive environments for all sexual orientations and gender identities. The commenter also recommended trainings provide strategies on how to ask and respond to questions around these topics in a respectful way and that therapists who work with LGBTQI+ youth in care should provide evidence-based services and care. One commenter recommended all training include information about the critically important role of faith for the mental health of LGBTQI+ youth and that ACF should urge states to approve diverse training options, including at least one approved training sequence designed by and for theologically conservative faith-based providers. Several commenters recommended provider training should be offered annually for new resource families or as an opportunity for a training ‘‘refresher’’ and ideally should be coupled with coaching opportunities to reinforce training content. One commenter recommended training modules be updated and provide for recurring trainings as the agency best sees fit and that ACF should put in place a system to implement a data check to understand the effectiveness of these training programs. Several commenters recommended ACF highlight programs that have been developed to work with existing resource families and recommend that States provide similar programs to placement providers who are assessed as not yet supportive to LGBTQI+ children. One commenter recommended ACF should provide specific funding and grant opportunities to assist states and tribes to provide appropriate E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 34830 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations training pertaining to LGBTQI+ children in foster care. Many commenters had suggestions about foster care provider training, such as requiring that providers receive relevant trainings and resources that enable and empower them to care for LGBTQI+ children; agencies offer the same provider training requirements for kinship caregivers, and offer expanded provider training to ensure that all kinship and foster caregivers are equipped to be safe and appropriate, regardless of the child’s sexual orientation or gender identity; and incentives are offered to agencies using evidence-based trainings. Another commenter said that being designated to provide care for LGBTQI+ children should not be solely defined by the receipt of specific provider training and instead be determined by an ability and willingness of the caregiver to meet the child’s needs. Commenters also requested clarity on what constitutes ‘‘appropriate knowledge’’ and ‘‘skills,’’ recommending ACF work with faithbased groups on provider training development, while others suggested not to be overly specific. Other commenters disagreed saying that there is no ‘‘official federal training available’’ for providers and that since foster care training curriculum are administered by state and county authorities, enforcing specific provider training requirements would violate individual state statues. Other commenters suggested adding information about professional standards as part of the provider training requirement. One commenter suggested expanding the rule to include training for all service providers, including attorneys and guardians ad litem. Response: We considered all of the recommendations and comments. We have revised the final rule in paragraph (b)(1)(ii) to add additional specificity to the training for foster care providers. In addition to requiring the training to reflect evidence, studies, and research about the impacts of rejection, discrimination, and stigma on the safety and wellbeing of LGBTQI+ children, the final rule also requires the training to provide information for providers about professional standards and recommended practices that promote the safety and wellbeing of LGBTQI+ children. Those recommended practices should reflect evidence-based supportive behaviors shown to improve health and other outcomes for LGBTQI+ children and exclude behaviors shown to lead to poor health outcomes for LGBTQI+ children. ACF acknowledges that training materials could be improved through engagement with VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 people with lived experience, and strongly encourages title IV–E/IV–B agencies to do so, though we have not chosen to make it a requirement. So long as the requirements in this final rule are satisfied, ACF will defer to states and tribes on how to best incorporate these additional requirements into their training. ACF will provide technical assistance to help agencies implement this requirement. The final rule does not extend these training requirements in paragraph (b)(1)(ii) beyond the foster care provider, as the training is focused on becoming a Designated Placement for a child. ACF acknowledges title IV–E/IV–B agencies should offer training and services to kinship caregivers and foster families that opt to become Designated Placements for LGBTQI+ children, particularly those currently placed with them. The final rule in § 1355.22(b)(2) states that services and training can be offered to current providers, including kin, to help them become a Designated Placement if they wish and thus promote sibling unification, and retaining sibling, kinship, family, and community ties. ACF acknowledges that training on supportive services for LGBTQI+ children could be beneficial for guardians ad litem and attorneys. However, requirements for training attorneys are beyond the scope of this rule. Other Comments on Designated Placement Requirements Comment: One commenter wanted the rule to more clearly specify who is included in the term placement provider. Response: Placement providers are foster family homes, child care institutions, or other facilities that provide foster care to children, consistent with the definition of foster care at 45 CFR 1355.20. Comment: One commenter requested clarification on whether short-term, emergency placements are exempt from the Designated Placement requirements for an LGBTQI+ child if a designated provider is unavailable. One commenter expressed the need to afford flexibility for states to offer exceptions or alternatives for LGBTQI+ children placed with kin caregivers when it is in the best interest and desire of an LGBTQI+ child. Response: The issues raised by the commenters regarding short-term or emergency placements are related to agency decision making and provider licensing which are determined at the local level. State and Tribal title IV–E/ IV–B agencies that have placement and care responsibility of children who are PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 in foster care have the authority to make placement decisions for the child. In doing so, they must consider the Federal statutory and regulatory requirements for foster care placements and must balance all of these factors in making a placement decision on a case-by-case basis. This requirement includes relative placement preferences, jointly placed sibling placement requirements, least restrictive placement requirements, and requirements for placements in close proximity to the parent’s home and the child’s school of origin. However, we are not revising the final rule to provide specific exemptions. ACF encourages title IV–E/IV–B agencies to work with foster care placement providers who wish to become Designated Placements, including relative placements to build their capacity to provide such placements through coaching, training, and education. As noted above, ACF encourages agencies to use case work, data, and modeling to ensure that there are enough placements as needed in specific geographic areas, which will help ensure that children are placed in proximity to the parent’s home and child’s school of origin. Ensuring adequate numbers of Designated Placements will also help increase the likelihood that LGBTQI+ children will be placed with siblings. Comment: Several commenters had suggestions or requested clarification regarding the terms used in this provision of the NPRM. Several organizations suggested using the term ‘‘developmentally appropriate’’ instead of ‘‘age-appropriate.’’ Response: We agree with commenters that in addition to age-appropriate resources, services and activities, a child should have access to developmentally appropriate resources, services, and activities. Therefore, we are revising the final rule to read ‘‘ageor developmentally- appropriate.’’ This is to be consistent with the definition in section 475(11)(A) of the Act (Social Security Act Section 475(11)(A), 42 U.S.C. 675(11)(A)). Final Rule Changes: The final rule provides requirements for a placement to be considered a Designated Placement, which goes beyond the general protection of an environment free of harassment, mistreatment, and abuse, which is now described as safe and appropriate. To be considered Designated, a placement must meet the criteria described in § 1355.22(b)(1). E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations Section 1355.22(b)(2) Process for Notification of and Request for Designated Placements Section 1355.22(b)(2) describes the process the title IV–E/IV–B agency must implement to notify an LGBTQI+ child that they may request a Designated Placement or request that services be offered to their current placement to become a Designated Placement. In the NPRM, where the provision to request a placement for an LGBTQI+ child was located at § 1355.22(a)(2), ACF proposed that title IV–E/IV–B agencies must implement a process by which a child identifying as LGBTQI+ may request a placement specially designated as meeting specified requirements for LGBTQI+ children, and that the title IV– E/IV–B agency must consult with such child to provide an opportunity to provide input into that placement. The NPRM proposed that this process must safeguard the privacy and confidentiality of the child. It also proposed to require that title IV–E/IV– B agencies notify all children over the age of 14 that specially designated placements for LGBTQI+ children are available, as well as providing such notification to children under the age of 14 who have been removed from their home due to familial conflict about their LGBTQI+ status, and children who have disclosed their LGBTQI+ identity or whose LGBTQI+ identity or status is known to the agency. The NPRM further proposed that the notice should be provided in an age-appropriate manner both verbally and in writing, and that the notice must inform the child about how they request a safe and appropriate placement. lotter on DSK11XQN23PROD with RULES7 Notification Requirements—Frequency, Age, and DevelopmentalAppropriateness Comment: Many commenters provided recommendations on how often the agency must provide the child notification and recommended providing multiple notifications to children. Suggestions included providing notice at least two times a year; continuously; at regular intervals; and no less than twice per year. One commenter stated that children should be notified within 72 hours of entering foster care that having a safe and appropriate foster placement is a right. They also recommended that youth should acknowledge receipt of rights at case hearings and placement changes and that rights be publicly posted in congregate care facilities, and accessible to youth in foster homes. Response: There are existing mandated requirements for agencies to VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 provide care and services to children in foster care. This includes conducting an initial case plan within 60 days of a child’s removal and conducting monthly home visits with the child. These are opportunities that agencies already have in their ongoing work that will allow them to provide proper notifications in accordance with the rule; while the rule specifies information that must be included in the notice, agencies are not required to establish a new process to notify children that Designated Placements are available. ACF intends to clarify opportunities to ensure children are informed through technical assistance. We encourage agencies to use all opportunities available to ensure children are well informed. Therefore, we have determined not to make these changes in the final rule. However, ACF takes this opportunity to clarify that in response to comments about enforcement of the rule’s provisions, the final rule provides for the notification requirement to be monitored through the CFSRs, a formal monitoring protocol in which the state’s efforts to comply with title IV–E and IV–B program requirements are assessed at the case and systems level. This change is discussed below under Section 1355.34(c) Criteria for Determining Substantial Conformity. Comment: Numerous commenters recommended that the notice of availability of safe and appropriate placements should be provided to all children regardless of age, rather than the age of 14 as specified in the NPRM. One organization commented that notice at age 14 is too late and should be provided at an earlier age. Another suggested varying ages at which to begin offering notifications. Response: ACF appreciates the comments about the importance of providing notification to children. In the final rule, ACF has kept the age requirement for notification to all children 14 and over, in alignment with the existing case plan requirement in section 475(1)(B) of the Social Security Act. Moreover, in addition to requiring agencies to notify all children age 14 and over, the final rule also requires agencies provide notice about Designated Placements to those under age 14 who are removed from their home due, in whole or part, to familial conflict about their sexual orientation, gender identity, gender expression or sex characteristics; have disclosed their LGBTQI+ status or identity; or whose LGBTQI+ status or identity is otherwise known to the agency. It also requires that the title IV–E/IV–B agency ensure PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 34831 that LGBTQI+ children have access to age- or developmentally appropriate services that support their needs related to their sexual orientation and gender identity or expression. This includes clinically appropriate mental and behavioral health care supportive of their sexual orientation and gender identity and expression as needed. Comment: Many commenters recommended that the NPRM requirement for the written and verbal notice to be provided in an ‘‘ageappropriate’’ manner be revised. They recommended that age appropriate be changed to ‘‘developmentally appropriate.’’ Response: We agree with commenters that in addition to providing written and verbal notice in an age-appropriate manner, the notice should also be provided in a developmentally appropriate manner. Therefore, we are revising the final rule to read ‘‘age- or developmentally appropriate.’’ This is to be consistent with the definition in section 475(11)(A) of the Social Security Act, 42 U.S.C. 675(11)(A). Requested Placements Comment: A number of commenters stated that while the NPRM proposed that the agency must notify the child specified in the NPRM that a safe and appropriate placement was available, they understood it as written that a safe and appropriate placement is only available if the child requested the placement. Some commenters indicated that this would be too heavy a burden on the child to self-identify and to initiate the request, which would exacerbate negative health outcomes for these children. One commenter recommended removing all of paragraph (a)(2) in the NPRM because if all placements are safe and appropriate as required, there would be no need to request one, and others commented that they support this section as proposed. Response: As we have previously discussed, the final rule expressly provides that all placements, including placements for LGBTQI+ children, must be safe and appropriate. However, we have clarified that because not all placements will be Designated Placements, the rule provides for a process by which a Designated Placement may be offered or requested. HHS intends that there are multiple processes through which Designated Placements may be provided to an LGBTQI+ child, including when initiated by a child’s request. Final Rule Changes: The final rule provides for a process by which an LGBTQI+ child may request a Designated Placement or request that E:\FR\FM\30APR7.SGM 30APR7 34832 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations their current placement be offered services. The final rule maintains the proposed rule’s minimum age of notification of 14 and over, and continues to require agencies to provide notice about Designated Placements to those under age 14 who are removed from their home due, in whole or part, to familial conflict about their sexual orientation, gender identity, gender expression, or sex characteristics; have disclosed their LGBTQI+ status or identity; or whose LGBTQI+ status or identity is otherwise known to the agency. In addition, the final rule adds a requirement that the notice given to children must also inform the child of non-retaliation protections and the process whereby a child may report concerns about retaliation. lotter on DSK11XQN23PROD with RULES7 Section 1355.22(b)(3) Placement and Services Decisions and Changes Comments: A number of commenters raised concerns about the impact that they believed the proposed regulations would have on the placement stability of LGBTQI+ youth. One commenter raised a concern that if only some foster care providers are designated safe and appropriate for LGBTQI+ children, it may result in decreased placement stability for LGBTQI+ children. Other commenters stated that the result of an LGBTQI+ child requesting a placement that affirms their identity will be to move to another provider, and that such placement changes cause upheaval and trauma for children. Some commenters said that LGBTQI+ youth, especially those who are in placements with their siblings, would avoid requesting Designated Placements for fear of being separated from their siblings, community, or school. Response: ACF agrees that placement stability is a vitally important component of a youth’s experiences and outcomes in foster care, and that placement stability is impacted by a foster care provider being able to meet a child’s individual needs. ACF further acknowledges that research shows that LGBTQI+ youth in the child welfare system have lower levels of placement stability compared with other youth.31 In response to concerns about placement stability, we note first that the placement stability of LGBTQI+ 31 Wilson, B.D.M., & Kastanis, A.A. (2015). Sexual and gender minority disproportionality and disparities in child welfare: A population-based study. Children and Youth Services Review, 58, Pages 11–17, ISSN 0190–7409, https://doi.org/ 10.1016/j.childyouth.2015.08.016. Poirier, J., Wilkie, S., Sepulveda, K & Uruchima, T., Jim Casey Youth Opportunities Initiative: Experiences and Outcomes of Youth Who Are LGBTQ, 96.1 Child Welfare, 1–26 (2018), https://www.proquest.com/ docview/2056448464. VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 youth will be positively impacted by a title IV–E/IV–B agency’s success in ensuring there are sufficient Designated Placements to meet the needs of LGBTQI+ youth. As clarified in the NPRM, IV–E agencies may claim Federal funds under title IV–E for certain activities to comply with this rule, including recruiting and training providers to be Designated Placements. ACF further acknowledges that one consequence of an LGBTQI+ child requesting a Designated Placement may be a move to a new placement and that in certain instances, the child’s first preference may not be a change in placement but rather that steps be taken to make the current placement more supportive of the child’s LGBTQI+ status or identity. Accordingly, we revised the final rule in several important ways. First, we have made clarifications at § 1355.22(b)(2) related to notification requirements. In addition to the requirement that title IV–E/IV–B agencies implement a process under which a child may request a Designated Placement, this final rule further requires that this process also enables a child to request services for a current placement to receive services to become supportive. Agencies must provide notice that the child can request a placement change or services for a current placement, and the process the agency will use for responding to the request. The final rule also clarifies that the title IV–E/IV–B agency’s process for considering such a request must provide the child with an opportunity to express their needs and concerns. Second, we have added a new section at § 1355.22(b)(3) which provides further clarity on how the title IV–E/IV– B agency should reach placement and services decisions. The final rule clarifies that when making placement and service decisions related to an LGBTQI+ child, the title IV–E/IV–B agency shall give substantial weight to the child’s expressed concerns or requests when determining the child’s best interests. As noted in the final regulatory text, placement decisions should give substantial weight to the child’s requests; determining a child’s best interests will require that the title IV–E/IV–B agency engage directly with the child to understand their needs and concerns. The final rule further provides that, to support placement stability, when a request for a placement change or services is made, the title IV–E/IV–B agency must first determine whether actions could be taken to support the current provider in voluntarily meeting the conditions of a Designated PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 Placement, and if the provider is willing to meet the conditions of a Designated Placement, requires that the title IV–E/ IV–B agency use the case review process to regularly review the provider’s compliance in providing a supportive environment. We believe this clarification in the final rule will allow more LGBTQI+ children to be safely served in their current placement. Under these revised provisions, if an LGBTQI+ child expressed their preference to receive a Designated Placement, but their current provider had not sought to become a Designated Placement provider, the title IV–E/IV–B agency would be required to consider whether actions could be taken to support the current provider in meeting the conditions of a Designated Placement to maintain the child’s placement stability, if the provider wishes to become such a placement. For example, the current placement provider could be offered the opportunity to receive the training needed to become a Designated Placement to better meet the needs of the LGBTQI+ child. Other steps to promote placement stability could include—consistent with child’s best interests and the willingness of the provider—more regular visits by the caseworker, or counseling for the child alone or in conjunction with the placement provider to address any challenges. As noted throughout this rule, we reiterate that nothing in this rule compels any provider to seek to become a Designated Provider. In the case of a provider who is not interested in becoming a Designated Placement for an LGBTQI+ child currently in their care, the title IV–E/IV–B agency could meet the child’s needs by placing the child with a Designated Placement provider or, consistent with the child’s preference for placement stability and the agreement of the current provider, by providing training and services necessary to make the current placement more supportive. To further support the placement stability of LGBTQI+ children, we reiterate that this rule’s prohibition on retaliation encompasses unwarranted placement changes for a child because of their LGBTQI+ status or identity. Compliance with some requirements of this rule will be assessed through the CFSRs and all requirements are subject to the partial review process. In pertinent part, the CFSRs assess the degree to which States have the necessary array of placement options available to serve the needs of all children who come into their care. The E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 reviews also assess state performance in ensuring placement stability. Section 1355.22(c) Process for Reporting Concerns About Placements and Concerns About Retaliation Section 1355.22(3) of the proposed rule described the process the agency must implement for LGBTQI+ children to report concerns about a placement that does not meet the requirements of this rule and concerns about retaliation. The NPRM proposed to require that title IV–E/IV–B agencies implement a process for LGBTQI+ children to report concerns about any placement that fails to meet the requirements of a placement that is specially designated for LGBTQI+ children. The NPRM proposed that this process must safeguard the privacy and confidentiality of the child. Like the requirement that certain children be notified that specially designated placements for LGBTQI+ children are available, the NPRM proposed that the same children be notified verbally and in writing about the process to raise concerns about a placement. Finally, the NPRM proposed to require that IV–E agencies ‘‘respond promptly’’ to a child’s reported concern, consistent with the agency’s timeframes for investigating child abuse and neglect reports, depending on the nature of the child’s report. Comment: Several commenters expressed their views on how an agency should respond to the child’s placement concerns, when to make a placement change, and foster family home licensing considerations, such as placing the license on a hold while the family engages in training and is reassessed. Response: State and Tribal title IV–E/ IV–B agencies have placement and care responsibility for children who are in foster care, and this allows such agencies to make placement decisions for each child on a case-by-case basis. In reference to whether there should always be a placement change when a child expresses a concern, we want to clarify that, absent a safety concern or the specific desires of the child, placement changes should not necessarily be the first course of action. As noted above, the final rule requires that before initiating any placement changes, the title IV–E/IV–B agency must consider whether additional services and training would allow the current provider to meet the conditions for a Designated Placement, and whether the current provider is willing to meet the conditions of a Designated Placement. Thus, with the child’s consent and subsequent agreement by the provider, we encourage the agency VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 to offer the foster care provider supports including training, coaching, and information to enable the provider to provide an affirming home for the child. This approach should be prioritized when a child wishes to remain in their placement for reasons of sibling unification, proximity to family and community of origin and schools, wish to remain in a family-like setting, or generally to avoid placement disruption. Where caregivers agree to accept such services and training, we encourage agencies to work in an ongoing way to build caregivers’ capacity to provide this kind of care for LGBTQI+ children. Prompt Response to Concerns In the NPRM, we requested public comment on whether and how best to define ‘‘promptly’’ as applied to the requirement at proposed paragraph (a)(3)(iii) that an agency respond promptly to a child’s reported concerns. Comment: Many commenters offered suggestions on how to define ‘‘promptly’’ as it applies to this paragraph. Many commenters responded with several suggestions recommending ‘‘promptly’’ be defined as immediate and that these instances should be investigated sooner than current agency timelines for investigating reports of abuse or neglect. Many included a timeframe for response in their recommendation to occur within two hours to 24 hours. Several expressed that any reported concerns should be handled with urgency as the LGBTQI+ population is already identified in the rule as having significant risk. Other commenters recommended ACF not define the term, leave flexibility to states to define it, and suggested that these requests be handled by an independent entity, such as an ombudsman. Response: ACF has reviewed all of the suggestions, and, while we appreciate the comments, we are not defining ‘‘promptly’’ in the final rule. ACF is not mandating a uniform timeframe for agencies to respond to a placement concern as that would be unnecessary when agencies already have established protocols to respond to reports of child abuse and neglect investigations. As such, the title IV–E/IV–B agency will determine the timeframe for responding promptly to a child’s report consistent with their existing timelines for agency child abuse and neglect reporting and investigating procedures commensurate with the seriousness of the child’s concern. When there is reasonable cause to believe that a child is in imminent danger, most agencies require investigations to be initiated immediately, in as little as two hours PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 34833 and not longer than 24 hours, after the report is made. As part of its existing monitoring process, ACF may evaluate whether a title IV–E/IV–B agency is responding to all concerns promptly, including that those raised by LGBTQI+ children are responded with the same level of promptness as it responds to other comparable concerns. While this final rule does not dictate a timeline for response, a title IV–E/IV–B agency that treated concerns raised by LGBTQI+ children about the safety of their placements with lesser priority than concerns raised by other youth may be subject to the partial review process to determine compliance with this requirement. Other Comments on Reporting Concerns About a Placement Comment: Several commenters suggested that ACF monitor and enforce these provisions for responding to placement concerns to the maximum extent possible. Response: These provisions in the final rule are monitored as part of the partial review process. This means that if ACF becomes aware of a potential non-compliance issue with the provisions in § 1355.22, it will initiate a ‘‘partial’’ review, which is a review of state and tribal title IV–E/IV–B plan requirements (45 CFR 1355.33(e)). If there is evidence of non-conformity identified through the partial review process, the state/tribal title IV–E/IV–B agency will be required to enter into a program improvement plan and make necessary changes to come into compliance. Therefore, since there is already an established protocol for monitoring, no changes to the final rule are warranted. Comment: Several commenters recommended adding a requirement to engage LGBTQI+ youth with lived experience in process development. One commenter recommended that it should be required for agencies to have an independent forum for reporting, investigating, and resolution of reported concerns, such as a Foster Care Ombudsman. One commenter recommended that agencies provide updates about the ‘‘investigation’’ to youth and allow options for ongoing communication to keep youth updated such as phone call or email. Response: We considered these comments and determined to retain the provision as proposed in the NPRM to allow agencies to design their notification processes. Instead, technical assistance is available to states and tribes as warranted in implementing in a manner consistent with best practices, including by engaging youth with lived E:\FR\FM\30APR7.SGM 30APR7 34834 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 experience. Therefore, we are not making changes to the final rule. Comment: Many organizations recommended adding that the written and verbal communication needed to be developmentally appropriate, rather than age appropriate. Response: We agree with commenters that in addition to developmentallyappropriate services, a child should have access to developmentallyappropriate communications. Therefore, we are revising the final rule to read that ‘‘notice must be provided in an age- or developmentally appropriate manner, both verbally and in writing.’’ This is to be consistent with the definition in section 475(11)(A) of the Social Security Act, 42 U.S.C. 675(11)(A). Final Rule Changes: As part of the final rule, ACF clarifies that, absent a safety concern or the specific desires of the child, placement changes should not necessarily be the first course of action. The final rule requires the process for reporting concerns about a child’s placement also include reports about retaliation. In addition, it adds that a child should receive developmentallyappropriate notice both verbally and in writing of the process for reporting concerns about a placement or retaliation. Section 1355.22(d) Retaliation Prohibited In the proposed rule, ACF proposed to require that title IV–E/IV–B agencies must have a procedure to ensure that no LGBTQI+ child in foster care experiences retaliation for disclosing their LGBTQI+ identity, for requesting a specially designated placement for LGBTQI+ children, or for reporting concerns that their current placement does not meet their needs related to being LGBTQI+. The proposed rule described examples of what would be considered retaliatory under the rule. Comment: Many commenters strongly supported the NPRM’s prohibition on retaliation and said that such protections were important for the safety, health, and wellbeing of LGBTQI+ children who face heightened risks when they disclose their sexual orientation or gender identity. Other commenters raised concerns about the retaliation prohibition and said that religious providers could be accused of retaliation for merely disagreeing with a child’s sexual orientation or gender identity. As discussed in Section IV, a couple of commenters asserted that concepts included in the proposed rule that relate to a child’s identity place individuals and organizations of faith at risk of being accused of retaliation that would VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 unconstitutionally infringe on their free exercise of religion. Response: ACF appreciates commenters’ views on the rule’s prohibition on retaliation. We agree with commenters who observed that LGBTQI+ children are particularly vulnerable to retaliation when their sexual orientation or gender identity is disclosed. We also acknowledge the concerns of some providers who worried about being accused of retaliation when engaged in conduct related to their faith or beliefs. As we address more fully below in our response to the First Amendment and Religious Freedom comments, ACF is committed to upholding Federal protections for free speech, religious exercise, and conscience for all providers and children in the child welfare system. In particular, we have developed this rule in a manner that respects these guarantees. The Department will apply Federal protections for religious exercise, free speech, and conscience, including by applying the Department’s regulatory protections for seeking religious accommodations. In response to requests for clarification, we are first more clearly specifying the actions for which retaliation is impermissible. The proposed rule had referred to retaliation for the child disclosing their LGBTQI+ identity; requesting a placement specially designated for LGBTQI+ children (which the final rule now refers to as Designated Placement); or for reporting concerns about the safety and appropriateness of their current placement. To this list, the final rule makes clear that the intended reference is to both LGBTQI+ status and identity, and further specifies that retaliation is impermissible for having a child’s LGBTQI+ status or identity disclosed by a third party; for the child being perceived to have an LGBTQI+ status or identity; or for the child’s request or report related to requirements for placements or services. The proposed rule had specified that retaliation includes unwarranted placement changes including unwarranted placements in congregate care facilities; restriction of access to LGBTQI+ peers; or attempts to undermine, suppress, or change the sexual orientation or gender identity of a child; or other activities that stigmatize a child’s LGBTQI+ identity. In response to commenters’ requests for greater clarity on what actions would constitute retaliation, the final rule provides additional detail about such actions and how they interact with other provisions of the rule, such as the PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 prohibition on harassment, mistreatment, or abuse in all foster placements. Comment: Some commenters expressed concern that, in their opinion, the proposed rule did not provide sufficient reassurance that LGBTQI+ children would be protected from retaliation, whether for disclosure of their status or identity, requesting a new placement, or reporting a placement that is not safe and appropriate. One commenter expressed concern that absent Federal protections ‘‘caseworkers could further harm children by engaging in discriminatory behavior,’’ and shared the example of a caseworker blaming a child for mistreatment they experienced as a result of their status or identity. This commenter was also concerned that the rule ‘‘fails to protect all families, including kin, and current and prospective foster and adoptive parents’’ from discrimination in their interactions with the child welfare system. Finally, this commenter noted that absent Federal protections, officials might use retaliatory child protection investigations, such as a state investigating a parent because of bias toward the child’s or the parent’s disclosed or perceived identity or status. Response: We agree with commenters that it is important that children have strong protections against retaliation for having disclosed their LGBTQI+ identity or status and having requested a new placement or reporting a placement that is not safe and appropriate. As a result, we have made several adjustments in the final rule. First, we specify in paragraph (d)(2)(v) that the title IV–E/IV–B agency will be considered to have retaliated against a child if it uses information about the child’s LGBTQI+ identity or status to initiate or sustain a child protection investigation or discloses information about the child’s LGBTQI+ identity or status to law enforcement in any manner not permitted by law. While both of these actions already fall under the definition of retaliation in paragraph (d)(2)(iv), which includes ‘‘disclosing the child’s LGBTQI+ status and/or identity in ways that cause harm or risk the privacy of the child,’’ we believe it is appropriate to name these actions directly in order to give assurance to LGBTQI+ children that such actions are not allowable. Second, in paragraph (d)(2)(vi), we clarify that the prohibition on retaliation includes retaliation against current or potential caregivers (including foster parents, pre-adoptive parents, adoptive parents, kin caregivers, and birth families) for supporting a child’s LGBTQI+ status or identity. We believe E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations this is necessary to ensure that children can benefit from the protections of this rule, as we are concerned that retaliation against a supportive adult could be used in an effort to prevent or discourage an LGBTQI+ child from requesting or receiving a Designated Placement or necessary services. While we do not define all of the actions that could constitute ‘‘retaliation’’ in this context, as it may vary significantly depending on circumstances, we understand it to mean any harmful action taken against a current or potential caregiver for an LGBTQI+ child because of their support of that child’s LGBTQI+ identity or status. Third, § 1355.22(b)(3)(iii) of the final rule includes a requirement that children receiving notice of the availability of Designated Placements also be provided notice of the retaliation protections in this final rule and describe the process by which a child may report a concern about retaliation. The title IV–E/IV–B agency must provide this information in an age- and developmentally appropriate manner, verbally and in writing, and must safeguard the confidentiality of the child. At a minimum, the agency must provide the notice about this process to: (1) all children age 14 and over, and (2) children under age 14 who have been removed from their home due to familial conflict about their sexual orientation, gender identity, gender expression or sex characteristics or have disclosed their LGBTQI+ status and/or identity, or it is otherwise known to the agency. In addition, the agency must respond promptly to the child’s concerns, consistent with the agency’s timeframes for investigating child abuse and neglect reports. Finally, in response to comments raising concerns about enforcement of these provisions and safeguards on keeping a child free from retaliation, ACF welcomes the opportunity to clarify that state agencies’ compliance with the final rule’s requirements will be monitored by CB through the CFSRs, a formal monitoring protocol in which the state’s efforts to comply with title IV–E and IV–B program requirements are assessed at the case and systems level. Comment: Several commenters recommended that the provision be expanded to all children in foster care to ensure no child experiences retaliation. One commenter recommended modifying the final rule to include a prohibition on retaliation of the disclosure of the child’s LGBTQI+ ‘‘status’’ in addition to the child’s identity. VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 Response: We agree with commenters that retaliation against any child because of their characteristics or identity is harmful and impermissible. For example, title VI of the Civil Rights Act of 1964, which prohibits all recipients of Federal financial assistance from discriminating on the basis of race, color, or national origin, specifically prohibits retaliation against anyone seeking to vindicate a right under that law. This prohibition includes discrimination and retaliation against children based on their shared ancestry or ethnic characteristics, including children who are perceived to be Jewish, Christian, Muslim, Sikh, Hindu, or Buddhist, or of another religious group, if the discrimination is based on their ancestry or ethnic characteristics. The purpose of this rule is to clarify the specific protections necessary for LGBTQI+ youth to receive safe and proper care in an appropriate placement. In particular, safe and proper care for LGBTQI+ youth requires that no child in foster care experiences retaliation as a result of their LGBTQI+ status or identity or for being perceived to have an LGBTQI+ status or identity. This intent is reflected in the current text of the final rule. Comment: One commenter recommended modifying the final rule to include that a child should not experience retaliation if an LGBTQI+ child’s identity is disclosed by a ‘‘third party.’’ Response: We agree with the commenter and modified the final rule to ensure a child does not experience retaliation as a result of disclosure of an LGBTQI+ child’s identity or status by a third party. As such, the provision now includes a prohibition on retaliation whether the child or a third party discloses the LGBTQI+ child’s status or identity. This is to ensure that the provision is applied as broadly as needed and provides protection for a child whose identity or status is shared with another party resulting in the possibility of retaliation as discussed in the preamble of the proposed rule. Comment: Several commenters recommended that retaliation include restricting normalcy activities (e.g., attempts to restrict access to activities that allow youth to make and maintain friends, and develop problem solving skills) due to their sexual orientation or gender identity. One commenter recommended modifying the final rule to reflect that retaliation is not limited to items listed and can include restriction of access to supportive community resources. Response: ACF agrees that restricting an LGBTQI+ child’s access to age- and PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 34835 developmentally appropriate supportive resources or activities, or access to supportive peers or family members, based on their LGBTQI+ status or identity, would constitute retaliation under this rule. We also agree that disclosing the child’s LGBTQI+ status and/or identity in ways that cause harm or risk the privacy of the child are impermissible forms of retaliation. The final rule clarifies the conduct that will be considered retaliation includes the examples listed at § 1355.22(d)(2)(i) through (vi). Comment: One commenter voiced concern about a ‘‘lack of an enforcement policy related to retaliation’’ and stated without significant enforcement policy, the provision is hollow. Response: We considered the commenters concern and, to provide further clarity, modified the regulatory provisions for monitoring in the final rule. The final rule now includes monitoring a state agency’s compliance with the requirements of § 1355.22(d) through the CFSR. Final Rule Changes: Consistent with the Protections Generally Applicable for all placements, discussed above, the final rule clarifies that harassment, mistreatment, or abuse would also be considered retaliation. In response to comments on other possible retaliatory actions against LGBTQI+ children or their caregivers, the final rule also specifies that a title IV–E/IV–B agency, provider, or any entity acting on behalf of an agency or provider will be considered to have retaliated against a child if it restricts access to developmentally appropriate materials or community resources; discloses private information in a way that causes harm or violates the rights of a child; or uses information about the child’s LGBTQI+ status or identity to initiate or sustain an investigatory action. The final rule extends the prohibition on retaliation to include retaliation against current or potential caregivers. It clarifies a requirement that children receiving notice of the availability of Designated Placements also be provided notice of the retaliation protections, and it provides for monitoring state agency compliance through the CFSR. Section 1355.22(e) Access to Supportive and Age- or Developmentally Appropriate Services Section 1355.22(a)(5) of the proposed rule described the requirements for the agency to provide access to services that support the child’s LGBTQI+ status and/ or identity and includes clinically appropriate mental and behavioral health care that is supportive of their E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 34836 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations sexual orientation and gender identity and expression. Comment: Many organizations suggested adding medical care (some referred to this as health care) and clarifying what this entails. Several commenters said it was unclear whether the rule allows or requires genderaffirming medical care, with some commenters opposing access to genderaffirming care and others supporting such access. Many organizations suggested the rule should state that gender-affirming medical care is among the potential age-appropriate resources and services that may support transgender children’s health and wellbeing. Other commenters said that gender-affirming care should never be considered ‘‘appropriate’’ services. Response: This rule does not establish any standard of medical care. Title IV– E agencies determine what services to provide to an individual child, on a case-by-case basis, in accordance with statutory requirements. Specifically, the case plan must assure ‘‘that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents’ home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan’’. See section 475(1)(B) of the Social Security Act, 42 U.S.C. 675(1)(B). What services are appropriate for an individual child would depend on many individual factors, including physicians’ recommendations, the input and consent of the child’s authorized legal representative or parent, the child’s input, and the best available medical guidance at the time. Nothing in this rule preempts state laws regulating the practice of medicine or prohibiting particular treatments. Comment: Many commenters recommended explicitly defining mental and behavioral health care as broad and inclusive of wellness practices and alternative supports. Response: Mental and behavioral health supports are examples of required supports for which the agency must provide access to all children in foster care, including LGBTQI+ children. As such, ACF has determined it is not necessary to provide a definition for these examples. Title IV– E/IV–B agencies will determine what mental and behavioral health care services are needed on a case-by-case basis in accordance with a child’s case plan to, among other things, facilitate VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 the child’s safe return home or the permanent placement of the child. Comment: Several commenters suggested explicitly prohibiting the use of so-called ‘‘conversion therapy’’ and other harmful interventions that undermine and conflict with a youth’s identity. Other commenters asked about the definition and ability to use ‘‘talk therapy.’’ Others provided information that addressed out of scope issues regarding this topic. Response: As we stated in the NPRM, efforts to change or suppress a child’s sexual orientation, gender identity, or gender expression—also known as socalled ‘‘conversion therapy’’—are not supported by credible evidence and have been rejected as harmful by the American Academy of Child and Adolescent Psychiatry, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, and the National Association of Social Workers, among others. The final rule, at § 1355.22(d)(2)(ii), includes ‘‘Attempts to undermine, suppress, change, or stigmatize a child’s sexual orientation or gender identity or expression through so-called ‘‘conversion therapy’’ as a form of prohibited retaliation against any child known or perceived to have an LGBTQI+ status or identity. Section 1355.22(e) requires that the title IV–E/IV–B agency must ensure that LGBTQI+ children have access to age- or developmentally appropriate services that are supportive of their sexual orientation and gender identity or expression, including clinically appropriate mental and behavioral health supports, which can include forms of talk therapy. Comment: Several commenters had suggestions or requested clarification regarding the terms used in this provision. Several organizations suggested using the term ‘‘developmentally appropriate’’ instead of ‘‘age-appropriate.’’ Response: We agree with commenters that in addition to age-appropriate services, a child should have access to developmentally appropriate services. Therefore, we are revising the final rule to read ‘‘age- or developmentally appropriate’’. This is to be consistent with the definition in section 475(11)(A) of the Social Security Act, 42 U.S.C. 675(11)(A). Comment: A few commenters recommended ACF provide technical assistance, consultants, or funding to support recruitment of providers in rural areas to support LGBTQI+ children in foster care. Several organizations expressed their views on working with local and national agencies and PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 individuals with lived experience to maintain a list of national resources to assist agencies in identifying supportive and age-appropriate services and to add standards of care for what constitutes clinically appropriate care and services. Response: ACF has a current solicitation for a training and technical assistance contractor to assist states and tribes by providing training to increase Designated Placements for LGBTQI+ children and youth in foster care. ACF intends to issue implementation guidance for the final rule incorporating many of these recommendations for recruiting Designated Placement providers including in rural areas, including partnering with local and national agencies serving LGBTQI+ youth, and approaches which are informed by the lived experiences of LGBTQI+ children and youth in foster care. Final Rule Changes: The final rule states that attempts to undermine, suppress, change, or stigmatize a child’s sexual orientation or gender identity or expression through so-called ‘‘conversion therapy’’ is a form of prohibited retaliation against any child known or perceived to have an LGBTQI+ status and/or identity. The final rule also adds that, in addition to age-appropriate services, a child should have access to developmentally appropriate services. Section 1355.22(f) Placement of Transgender and Gender NonConforming Children in Foster Care In the NPRM, ACF proposed that when considering placing a transgender, gender non-conforming or intersex child in sex segregated child care institutions, the title IV–E/IV–B agency must place the child consistent with their gender identity. The NPRM further proposed to require that IV–E/IV–B agency also consult with the transgender, gender non-conforming, or intersex child to provide an opportunity to voice any concerns related to the placement when the agency is considering a placement in such a facility. Comment: A commenter asked that the final rule clarify placement procedures for non-binary and TwoSpirit children living in sex-segregated child care institutions. Response: As explained in the preamble to the final rule for § 1355.22, non-binary and Two-Spirit children are included throughout this regulation under the term LGBTQI+. Thus, this provision for the agency to place the child consistent with their gender identity also applies to non-binary and Two-Spirit children and we have added the language to reflect this in the E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations preamble for clarity. When making placement decisions for children whose gender identity doesn’t meet the sexsegregated options at the child care institution, the title IV–E/IV–B agency should engage with the child to determine the safest living arrangement that is in the child’s best interest among the options that are available, giving substantial weight to the child’s request. Comment: Some commenters expressed concern about the NPRM requirement for children to be placed in sex segregated child care institutions consistent with their self-identified gender identity, not their ‘‘biological sex.’’ They stated it is a danger and ‘‘disregards the child’s safety and privacy interests to be placed in a mixed-sex setting’’ that a child ‘‘may find uncomfortable and invasive or, at worst, unsafe.’’ One state recommended that the final rule allow for discussions that incorporate the child’s preference as well as safety and risk concerns. Response: ACF agrees that it is important to incorporate a child’s preference for all placements. While ACF believes the requirement to offer a transgender or gender non-conforming child a placement consistent with their gender identity is most applicable to placements in child care institutions and sex segregated facilities, we have determined that it is necessary to extend that requirement to apply to all placements for transgender and gender non-conforming children. ACF accordingly updated the final rule text to apply to all placements for transgender and gender non-conforming children. The final rule text states that, when considering placing a child, the title IV–E/IV–B agency must offer the child a placement consistent with their gender identity. The updated regulatory text is consistent with the statutory requirement to place children in the ‘‘most appropriate setting available’’ (section 475(5) of the Social Security Act, 42 U.S.C. 675(5)(A)) and the rule’s requirement that title IV–E/IV–B agencies must give substantial weight to the child’s expressed concerns or requests when determining the LGBTQI+ child’s best interest when making placement and service decisions. ACF disagrees with the assertion that allowing transgender and other youth to access sex-segregated facilities consistent with their gender identity will diminish safety or privacy. Courts have held that all individuals’ safety and privacy can be protected without also excluding transgender individuals from accessing sex-separate facilities and activities consistent with their VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 gender identity.32 Title IV–E/IV–B agencies have a range of tools at their disposal to accommodate any individuals’ privacy concerns in a nondiscriminatory manner. However, a title IV/IV–B agency will be in violation of this rule if it refuses to offer a child a placement consistent with their gender identity. We also note that no application of this rule shall be required insofar as it would violate Federal religious freedom, conscience, or free speech law and that providers may request an accommodation from any rule provision as described in Section IV of the preamble, below. In addition, the NPRM proposed to require consultation with the child and the final rule maintains this requirement. The final rule requires that the title IV–E/IV–B agency consult with the child to provide an opportunity for the child to voice any concerns related to their placement when the agency is considering placing the child in such a facility. Comment: One commenter was concerned that the NPRM did not account for the preferences of parents whose rights are intact in these agency placement decisions. Response: Title IV–B/IV–E agencies have an established responsibility to engage with parents. For example, under 45 CFR 1356.21, title IV–E agencies ‘‘must make reasonable efforts to maintain the family unit and prevent unnecessary removal of a child from [their] home, as long as and the child’s safety is assured; [and] to effect the safe reunification of the child and family if temporary out-of-home placement is necessary to ensure the immediate safety of the child.’’ Under state and tribal law, parents often also retain certain rights even after their children have been removed from their physical and/or legal custody. We expect that agencies will act with appropriate awareness of parental rights under the law of the applicable state or tribe. Comment: A few commenters expressed concerns that the provision may conflict with state laws and policies that govern sex-segregated childcare institutions and that many sex-segregated childcare institutions are not equipped to meet these placement requirements. Response: The requirement to offer children a placement consistent with their gender identity is based on ACF’s careful consideration of current research on best practices to promote children’s health and wellbeing, as described in Section II of the preamble. This 32 See, e.g., Grimm v. Gloucester City, 972. F.3d 586 (2020). PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 34837 regulatory requirement does not preempt state or tribal laws regarding sex-segregated institutions. It simply requires that a child be offered a placement that is consistent with their gender identity. It thus clarifies, for children in foster care, the IV–E statutory requirement to place foster children in ‘‘a safe setting . . . consistent with the best interest and special needs of the child.’’ Section 475(5) of the Social Security Act, 42 U.S.C. 675(5)(A). If a state law prohibits placement in sex-segregated institutions based on gender identity, then the title IV–E/IV–B agency should explore all other placement options in order to offer a foster child a placement consistent with their gender identity, while also meeting the child’s other particular needs. ACF further notes that pursuant to § 1355.22(d)(2)(iii), agencies may not place children in child care institutions solely due to their sexual orientation or gender identity or expression or allow child care institutions or other providers to segregate or isolate children on the basis of their sexual orientation or gender identity or expression. Comment: Some commenters suggested having single or private rooms for youth who are non-binary and TwoSpirit who are placed in sex-segregated childcare institutions to ensure their comfort. Response: ACF appreciates the commenter’s concern for the privacy of such children and notes nothing in this rule would preclude those entities from accommodating the privacy needs of any child in their care. Appropriate placements should be determined based on the child’s individual needs and their expressed preferences. We understand the commenters’ concern that such children might feel especially uncomfortable in sex-segregated childcare institutions and encourage agencies to work with such children to ensure they receive appropriate placements. Comment: Commenters made recommendations throughout about how Federal funding should be used and that it should be prohibited in specified circumstances, such as if a childcare institution does not allow children to be placed according to their gender identity. Response: The final rule does not regulate how Federal funding under title IVE is reimbursed to states and tribes. Eligibility for title IV–E reimbursement of the placement of a particular child is based on many factors, including that the child is placed in a child care institution or foster family home as defined in section 472 of the Social Security Act. The final rule implements E:\FR\FM\30APR7.SGM 30APR7 34838 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 title IV–E and IV–B plan requirements, and not the particulars of title IV–E foster care funding. Therefore, the recommendations are not within the purview of this final rule and no changes were made to the final rule. Final Rule Change: The final rule clarifies that the requirement for title IV–E/IV–B agencies to offer placements for transgender and gender nonconforming children consistent with a child’s gender identity applies to all placements, not exclusively to sexsegregated child care institutions. Section 1355.22(g) Compliance With Privacy Laws As explained in the NPRM, title IV– E/IV–B agencies are prohibited from disclosing information concerning foster children for any purpose except for those specifically authorized by statute section 471(a)(8) of the Social Security Act. Information about a foster child’s LGBTQI+ identity or status, as well as any other information in their foster care case file, is protected by these confidentiality requirements. Foster children’s personal information may only be disclosed for specific authorized purposes, which are, in paraphrase: the administration of the title IV–E plan and that of other Federal assistance programs; any investigation, prosecution, or audit conducted in connection with any of those programs; and reporting child abuse and neglect to appropriate authorities. Under ACF regulations and policy, information that the IV–E/IV–B agency discloses for those allowable purposes may not be redisclosed by recipients unless the redisclosure is also for one of the enumerated allowable purposes. 45 CFR 205.50; Child Welfare Policy Manual 8.4E. Comments: Commenters provided input on the impact of the regulations on the privacy and confidentiality of LGBTQI+ youth. In addition, in the NPRM we requested public comment on what further guidance states may need on producing administrative records to monitor and track requests for safe and appropriate placements for LGBTQI+ children, while protecting the privacy and confidentiality of all children. Several commenters expressed concerns that children may feel unsafe disclosing their LGBTQI+ identity or reporting mistreatment in their current out-of-home placement due to their sexual orientation or gender identity. LGBTQI+ youth with lived experience in foster care have shared in comment letters, surveys, and testimony that they do not disclose their sexual orientation, gender identity or expression to foster parents and caseworkers for fear of lack VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 of acceptance, unwarranted placement changes, fear of separation from siblings and/or unwarranted placements in congregate care facilities, feeling a ‘‘taboo’’ against sharing their LGBTQI+ identity, fearing prejudice, and lacking privacy. Commenters additionally stated that state laws restricting discussion of LGBTQI+ identities in school may have a chilling effect on whether children feel safe disclosing their sexual orientation or gender identity. A few commenters made suggestions related to enhanced confidentiality provisions for data collection on a child’s sexual orientation, gender identity, or sex characteristics. These included a recommendation to include a provision to require the agency to disclose information only when necessary for the wellbeing of the child or required by court, to regulate permissible uses of data, data sharing, and data security/storage protocols, to require consistency with confidentiality requirements for health data, and to require the child’s consent to any disclosure under section 471(a)(8) of the Social Security Act (42 U.S.C. 671(a)(8)) about a specific child’s sexual orientation, gender identity, or sex characteristics. Two commenters recommended provisions on how to store, seal and maintain a child’s record. Specifically, they stated that the final rule should require agencies to seal physical records related to a child’s sexual orientation, gender identity or expression and separately maintain the information from the case record and that electronic records should be maintained under separate, heightened data security levels. Response: These experiences and concerns illustrate the need for data confidentiality, and protections from retaliation for disclosure or presumption of a child’s LGBTQI+ identity and status. Such requirements are essential to help ensure that children will feel safe to disclose their identity and request Designated Placements. Some states have existing privacy and data confidentiality requirements related to foster children’s sexual orientation, or gender identity or expression. For example, California law provides that all children in foster care have the right ‘‘to maintain privacy regarding sexual orientation and gender identity and expression, unless the child permits the information to be disclosed, or disclosure is required to protect their health and safety, or disclosure is compelled by law or a court order.’’ Cal. Welf. & Inst. Code sec. 16001.9(a)(19). In response to comments, and to address risks related to the disclosure of a child’s LGBTQI+ PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 status or identity and to help ensure children feel safe in making such disclosures and requesting Designated Placements, the final rule includes a number of important protections. First, § 1355.22(b)(2) provides that the process for requesting a Designated Placement or services to make a current placement a supportive one must safeguard the privacy and confidentiality of the child, consistent with section 471(a)(8) of the Social Security Act (42 U.S.C. 671(a)(8)) and 45 CFR 205.50. Second, § 1355.22(c) provides that the process for reporting concerns about a current placement must safeguard the privacy and confidentiality of the child, consistent with section 471(a)(8) of the Act (42 U.S.C. 671(a)(8)) and 45 CFR 205.50. Third, § 1355.22(d)(2)(v) provides that prohibited retaliation includes disclosing the child’s LGBTQI+ status or identity in ways that cause harm or risk the privacy of the child or that infringe on any privacy rights of the child. Fourth, § 1355.22(g) specifies that the title IV–E/IV–B agency must comply with all applicable privacy laws, including section 471(a)(8) of the Act (42 U.S.C. 671(a)(8)) and 45 CFR 205.50, in all aspects of its implementation of this section, and that information that reveals a child’s LGBTQI+ status or identity may only be disclosed in accordance with law and any such disclosure must be the minimum necessary to accomplish the legallypermitted purposes. The amount of information necessary to achieve the purpose of the disclosure would be determined on a case-by-case basis and in consideration of the best interest of the child. For example, the information needed to make a referral for a child to receive services related to the child’s identity or status could be greater than another type of referral for services. In addition, states that allow open courts would want to be mindful about the information shared in reports to the court as that information could be later shared openly. The incorporation of these provisions is consistent with existing legal requirements relating to privacy and confidentiality. As discussed earlier in the preamble, title IV–E/IV–B agencies are required to maintain a child’s information confidentially and may disclose it only for purposes specifically authorized by law. Under ACF regulations and policy, information that the IV–E/IV–B agency discloses for those allowable purposes may not be redisclosed by recipients unless the redisclosure is also for one of the enumerated allowable purposes. 45 CFR 205.50; Child Welfare Policy Manual E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 8.4E. Regarding the statutory provision that allows title IV–E/IV–B agencies to disclose a child’s information for investigations, prosecutions, criminal or civil proceedings, or audits ‘‘conducted in connection with the administration of any [Federal assistance] programs,’’ the requirement that the proceeding or audit be ‘‘conducted in connection with the administration’’ of title IV–E or another Federal assistance program strictly limits the disclosures allowed. Title IV– E/IV–B agencies may not disclose information for purposes such as investigating whether children or families are in compliance with generally-applicable state or local laws, as such investigations would not be conducted in connection with the administration of a Federal assistance program. Final Rule Changes: The final rule includes several revisions to address privacy protections. Paragraph (g) was added to make explicit that title IV–E/ IV–B agencies must comply with all applicable privacy laws, including section 471(a)(8) of the Act and 45 CFR 205.50. Information revealing a child’s LGBTQI+ status or identity may only be disclosed in accordance with law. Such disclosure should be the minimum necessary to accomplish the legallypermitted purposes. The final rule also includes disclosing the child’s LGBTQI+ status or identity in ways that cause harm as conduct that constitutes prohibited retaliation. It also specifies that the title IV–E/IV–B agency must comply with all applicable privacy laws. Section 1355.22(h) Training and Notification Requirements In the NPRM, ACF proposed to require that in order to meet the requirements of the rule, title IV–E agencies must ensure that its employees who have responsibility for placing children in foster care, making placement decisions, or providing services are trained to implement the procedural requirements of this section, and are adequately prepared with the appropriate knowledge and skills to serve an LGBTQI+ child related to their sexual orientation, gender identity, and gender expression. The NPRM further proposed that the IV–E agency must 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 nonretaliation provisions. Finally, the NPRM proposed that the IV–E agency must ensure that any placement VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 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. Comment: Several organizations recommended engaging LGBTQI+ youth with lived experience in development and implementation, providing guidance or resources on minimum number of hours, frequency of trainings, curricula, topics, developing a list of curricula, or core elements for training requirements for employees. Many of the commenters provided specific topics and/or core elements and suggested curricula. A few commentors also recommended that the trainings be certified by certain non-profit agencies. Response: We have reviewed all the recommendations and appreciate recommendations for high-quality training. ACF has determined not to make any changes to the final rule in order to provide appropriate flexibility to agencies to determine the breadth of training consistent with the statute and rule and not prescribe specific requirements on hours, frequency, development, implementation, topics, or core elements. ACF intends to issue implementation guidance for the final rule which incorporates many of these recommendations for high-quality initial and ongoing training for providing supportive care for LGBTQI+ children. We expect the guidance will be informed by the lived experiences of LGBTQI+ children and youth in foster care, and we encourage title IV–E/IV–B agencies to engage LGBTQI+ youth with lived experience in foster care in developing employee trainings. Further, ACF is committed to providing ongoing training and technical assistance to assist states, tribes, and agencies to provide training to increase Designated Placements for LGBTQI+ children in foster care. Comment: Several commenters recommended that training should be mandatory for all staff, including all contractors and subrecipients of the child welfare agency. Response: ACF has determined not to make any changes to the final rule for the following reasons: it would be overly burdensome to title IV–E/IV–B agencies to have specific training requirements for those employees who do not have responsibility for placing children in foster care, for making placement decisions, or for providing services. The rule is designed to effectuate Designated Placements in the least burdensome manner possible. PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 34839 Thus, the final rule retains the provision as proposed. Comment. Some commenters recommended that all agency contractors must be informed of the procedural requirements. Response: The requirement to be informed of the requirements in the final rule is essential only for those contractors that are fulfilling foster care placements and services. We are not expanding the requirement to include contractors and subrecipients who are not going to be involved with placements because it is unnecessary and overly burdensome for the agency to notify such contractors and subrecipients about the requirements of the rule. Thus, no changes to the final rule are warranted. Comment: Some commenters recommended that all providers, including those that are seeking to serve as a designated placement for LGBTQI+ children must be informed of the procedural requirements. Response: We agree with the commenters and have revised the final rule to ensure that all foster care providers are informed about the provisions in the final rule. Providers who are Designated Placements will receive additional training to meet the needs of the LGBTQI+ child, as knowing the full protections required for these children is necessary for fulfilling their role as a Designated Placement. Final Rule Changes: The final rule clarifies agencies must ensure that all placement providers are informed of the procedural requirements to comply with this rule, including the required nonretaliation provisions. Section 1355.22(i) Protections for Religious Freedom, Conscience, and Free Speech Comment: Many commenters raised concerns that religious families and organizations will have sincerely held religious beliefs that conflict with the rule and as a result, those families and organizations will be deemed to not be ‘‘safe and appropriate’’ by the Federal Government. These commenters asserted that both individuals and organizations of faith will be discouraged from applying or continuing to provide foster care services because they will be penalized for their beliefs. Another commenter said that if adhering to a certain view of sexuality equates to a hostile environment, faith-based institutions and religious foster parents will not fit the standard. Similarly, a commenter wrote that a ‘‘safe and appropriate’’ placement designation implies that a home that espouses certain ethics of E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 34840 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations marriage, sexuality, and gender identity is harmful to LGBTQI+ children. Several commenters also stated that in order to be considered a safe and appropriate placement, a provider would be expected to utilize the child’s identified pronouns, chosen name, and allow the child to dress in an age-appropriate manner that the child believes reflects their self-identified gender identity and expression. Response: ACF appreciates the vital role that faith-based providers and families of faith play in the child welfare system. Indeed, many families of faith are compelled by their religious beliefs to provide loving care to children in foster care, including LGBTQI+ children. ACF further anticipates that some faith-based providers and families of faith will seek to become Designated Placements for LGBTQI+ children, while others will choose not to do so. ACF remains fully committed to complying with all religious freedom, free speech, and conscience laws and regulations, including the First Amendment and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb et seq., as well as all other applicable Federal civil rights laws and HHS regulations including 45 CFR part 87 (‘‘Equal Treatment for Faith-Based Organizations’’). A provider requesting any accommodation would submit the request to their state’s or tribe’s title IV– E/IV–B agency. If the title IV–E/IV–B agency determines that the request concerns an objection based on religious freedom, conscience, or free speech to an obligation that is required or necessitated by this rule, the title IV–E/ IV–B agency must promptly forward the request to ACF, which will consider the request in collaboration with the HHS Office of the General Counsel. ACF will carefully consider any organization’s assertion that any obligations imposed upon them that are necessitated by this final rule conflicts with their rights under the Constitution and Federal laws that support and protect religious exercise, free speech, and freedom of conscience. Under ACF’s established practice, a state or tribe may not disqualify from participation in the program a provider that has requested the accommodation unless and until the provider has made clear that the accommodation is necessary to its participation in the program and HHS has determined that it would deny the accommodation. See 45 CFR 87.3(c) and (q) (2014). We reiterate that this rule does not diminish each state’s and tribe’s obligation to ensure that faith-based organizations are eligible on the same basis as any other organization to VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 participate in child welfare programs administered with title IV–E and IV–B funds. See 45 CFR 87.3(a) (2014). Further, states and tribes are prohibited from discriminating for or against an organization on the basis of the organization’s religious character, motives, or affiliation, or lack thereof, or on the basis of conduct that would not be considered grounds to favor or disfavor a similarly situated secular organization. Id. Finally, to address some of the concerns that religious providers who decline to become designated as a placement provider for LGBTQI+ children could be deemed unsafe, the final rule uses different and clearer terminology, as outlined earlier in this preamble. The preamble notes that all placements must be safe and appropriate for all children, regardless of their sexual orientation or gender identity. And the final rule clarifies that all placements of LGBTQI+ children, like all other children, must be safe and appropriate, whereas placements that are offered by providers who decide to become specially designated to provide care for LGBTQI+ children will be referred to as Designated Placements. As we have explained elsewhere in this preamble, the general requirement to avoid harassment, mistreatment, and abuse—which applies to all children in all placements—does not turn on a provider’s religious or nonreligious motivation for engaging in conduct that rises to the level of harassment, mistreatment, or abuse. Nor would a provider’s merely holding particular views about sex and gender, whether for religious or nonreligious reasons, nor would respectful efforts to communicate with LGBTQ+ children about their status or identities violate that general requirement. Comment: Some commenters discussed the impact of the rule on kinship caregivers who are people of faith, and who may have religious concerns or objections to provisions within this rule. For example, one commenter said that the proposed rule would require training for relatives of children who are LGBTQI+ in some circumstances. The commenter wrote that such a rule would violate the religious beliefs of kinship caregivers. Another commenter said that although the rule provides an exemption framework for religious providers, that framework does not appear to apply to individual foster parents. Similarly, the commenters expressed concern about how the proposed rule would impact individual foster care providers with deeply held religious beliefs that are not affiliated with a faith-based PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 organization—which could include kinship caregivers. Response: ACF appreciates that kinship caregivers often provide the best possible placement for a child in foster care. That includes kinship caregivers who are people of faith. Title IV–E agencies should seek to comply with the requirements of this rule while continuing to prioritize placements with kinship caregivers whenever a caseworker has determined that doing so is in the best interest of a child. To be clear as to the training requirement, this final rule only requires that providers, including kinship caregivers, be informed of the procedural requirements of this rule, including the non-retaliation provision. The separate training requirement in paragraph (b)(1)(ii) applies only to those providers who voluntarily choose to offer Designated Placements. ACF understands that there could be instances in which a kinship caregiver has a religious objection to a requirement in this rule. But that does not mean the rule violates the religious beliefs of all kinship caregivers, or any other providers, irrespective of whether they have requested an accommodation. As with any provider that requests a religious accommodation, a kinship caregiver with a religious objection to a requirement of the rule could seek an accommodation by submitting the request to their state’s or tribe’s title IV– E/IV–B agency, which should then follow the same process that applies to other providers. As discussed more fully above, under that process, if the title IV– E/IV–B agency determines that the request concerns an objection based on Federal legal protections for religious exercise, free speech, or conscience an obligation that is required or necessitated by this rule, the title IV–E/ IV–B agency must promptly forward the request to ACF, which will consider the request in collaboration with the HHS Office of the General Counsel. As ACF acknowledged in the proposed rule preamble, in Fulton v. City of Philadelphia, 593 U.S. 522 (2021), the Court held that Philadelphia’s decision to apply a nondiscrimination requirement to a specific faith-based foster care provider, having made clear that the city had ‘‘no intention’’ of granting an exception to that organization, violated the Free Exercise Clause of the First Amendment. Id. at 535. In contrast, in the preambles to both the proposed rule and this final rule, ACF has made clear that the agency is fully committed to carefully considering any provider’s assertion that any obligations imposed upon them that are necessitated by this E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 final rule conflict with their rights under the Constitution and Federal laws and regulations supporting and protecting religious exercise and freedom of conscience. ACF will enforce these Federal protections by granting religious accommodations that are consistent with them where appropriate. RFRA protects the religious liberty rights of individuals as well as ‘‘corporations, companies, associations, firms, partnerships, societies, and joint stock companies.’’ 42 U.S.C. 2000bb–1; 1 U.S.C. 1. This practice of considering such requests on a case-by-case basis is consistent with applicable departmentwide regulations at 45 CFR 87.3(b) and (c). This individualized approach to any religious accommodation requests is also practical because ACF expects that many other care providers of varying religious or nonreligious backgrounds will be willing to be Designated Placements. ACF also recognizes that the facts that are relevant to any potential objection may vary considerably because the involvement of the child welfare system in kinship care varies from jurisdiction to jurisdiction as each state or tribe has its own laws and practices. For example, while some potential kinship care providers may have a pre-existing relationship with a child in foster care, others may not. Through the religious accommodation process to which ACF refers above, this rule recognizes that, insofar as the application of any requirement under this section would violate applicable Federal protections for religious freedom, conscience, and free speech, such application shall not be required. It also states that nothing in this rule shall be construed to require or authorize a state to penalize a provider in the state’s titles IV–E and IV–B program because the provider does not seek or is determined not to qualify as a Designated Placement. Final Rule Change: The final rule clarifies that insofar as the application of any requirement under the rule would violate applicable Federal protections for religious freedom, conscience, and free speech, such application shall not be required. The proposed rule did not include this provision in the proposed regulation text. Section 1355.22(j) No Penalties for Providers That Do Not Seek To Qualify as Designated Placements Comment: Several commenters suggested that any agency contractors or subcontractors and their licensed foster care providers who do not seek a special designation to serve LGBTQI+ children VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 should not have a contract with the state or at a minimum should not be able to utilize or claim any Federal funds. Other commenters asserted that the rule will penalize those providers who do not seek that designation and will thus discourage them from applying or continuing to provide foster care services. Response: ACF does not intend for this final rule to require any provider to seek the status of a Designated Placement. To make that point clear, we have added a new § 1355.22(j). This provision states that nothing in this rule requires or authorizes a State to penalize a provider in the state’s titles IV–E and IV–B program because the provider does not seek or is determined not to qualify for the status of a Designated Placement under this rule. It therefore underscores our intent that, as far as Federal law is concerned, the choice to become a Designated Placement is a voluntary one to be made by each foster care provider. By adopting this structure, ACF ensures that LGBTQI+ children in the foster care system will have Designated Placements available to them without requiring states or tribes to override the choices of providers who do not wish to be Designated Placements. Final Rule Change: The final rule clarifies that nothing in the rule shall be construed to require or authorize a state or tribe to penalize a provider in the state’s titles IV–E and IV–B program because the provider does not seek or is determined not to qualify as a Designated Placement under this rule. The proposed rule did not include this provision. Section 1355.22(k) Severability Section 1355.22(e) of the Proposed Rule described the severability provision in the event that a portion of the rule, if final, is determined by be invalid or unenforceable. We received no comments about this section and made no changes to the final rule, as it appears at § 1355.22(k). Section 1355.22(l) Implementation Comment: We received comments expressing concerns that the provisions in the rule added burden on child welfare agencies. One commenter indicated that its state would require two to three years to implement these new provisions. Response: We acknowledge that agencies will need time to come into compliance with these provisions, and this final regulation provides approximately two Federal fiscal years for implementation. The implementation date is on or before October 1, 2026. PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 34841 Section 1355.22(m) No Effect on More Protective Laws or Policies Comment: Commenters sought clarity about whether this regulation would preempt conflicting state laws. Response: As noted throughout this preamble, this rule does not preempt state laws that regulate health care or other matters that extend beyond the federally funded title IV–E/IV–B system. Rather, it interprets key terms that delineate the care title IV–E/IV–B agencies must provide to foster children in the programs carried out with Federal title IV–B and IV–E financial assistance. It is within HHS’ authority to implement the requirements applicable to the receipt of Federal matching funds under the Social Security Act for the administration of the title IV–B and IV– E programs, and nothing in this regulation requires state agencies or other persons to fail to comply with general state laws that regulate matters like health care that go beyond the foster care system. This rule sets a Federal floor for safe and appropriate care of LGBTQI+ children in the title IV–B/IV–E program. But it does not limit states from providing additional protections to those children. To clarify that point, in this final rule, ACF has added a new § 1355.22(m), entitled ‘‘No effect on more protective laws or policies.’’ This provision applies to the entirety of the final rule and makes clear that nothing in the rule shall limit any State, Tribal, or local government from imposing or enforcing, as a matter of state law, requirements that provide greater protection to LGBTQI+ children than this rule provides. This provision makes clear that, in the context of LGBTQI+ children, the final rule creates a Federal floor to enforce Congress’s mandate that children in title IV–E/IV–B programs receive safe and appropriate care. The rule requires that states ensure that they have a sufficient number of Designated Placements to serve all children in foster care who identify as LGBTQI+ and request or would benefit from such a placement. It imposes certain specific requirements on providers who have voluntarily agreed to serve as Designated Placements. It reaffirms that all children in title IV–E/IV–B programs, including LGBTQI+ children, are entitled to protections against harassment, abuse, and mistreatment, regardless of their placement. And it creates specific nonretaliation protections for LGBTQI+ children, also regardless of their placement. ACF believes that these provisions, taken together, advance the statutory guarantee that children in title IV–E/IV– E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 34842 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations B programs receive safe and appropriate care. But those provisions set a floor only. States and tribes may legitimately decide that the welfare and interests of LGBTQI+ children require greater protection. Nothing in titles IV–E and IV–B authorizes ACF to stand in the way of those state decisions, and ACF makes clear in this provision it has no intention to do so. ACF understands that a number of States have adopted statutes or policies that provide protections for LGBTQI+ children that go beyond those in this rule. Some of these States require training on how to support LGBTQI+ youth for all providers. See, e.g., N.M. Admin. Code 8.26.5.18.A.(3) (requiring policies to ‘‘educate prospective and current foster or adoptive families on how to create a safe and supportive home environment for youth in foster care regardless of their sexual orientation, gender identity or gender expression’’). Others have adopted their own detailed requirements governing placements for LGBTQI+ children. See, e.g., MD Policy SSA–CW #23–05 (Dec. 15, 2023). In a recent review of state laws and policies, ACF found that ‘‘[l]aws and policies in 22 States and the District of Columbia require that agencies provide youth who identify as LGBTQIA2S+ with services and supports that are affirming of the youth’s LGBTQIA2S+ identity and are tailored to meet their specific needs.’’ Children’s Bureau, Protecting the Rights and Providing Appropriate Services to LGBTQIA2S+ Youth in Out-of-Home Care at 2 (2023) (footnote omitted). In particular, ‘‘[p]olicies in 21 States and the District of Columbia address the needed qualifications for persons who provide out-of-home care for children or youth who identify as LGBTQIA2S+.’’ Id. at 4 (footnote omitted). And ‘‘[f]ifteen States and the District of Columbia require training on LGBTQIA2S+ issues for foster caregivers and related staff.’’ Id. (footnote omitted). These state laws and policies rest on the State’s authority to provide protections for children in its foster care system, not on this final rule. The State’s authority to provide those protections preexisted this final rule, and nothing in this final rule limits a State’s, tribes, or local government’s power to impose or enforce laws and policies like these. Final Rule Change: The final rule clarifies that nothing in the rule shall limit any State, tribe, or local government from imposing or enforcing, as a matter of law or policy, requirements that provide greater protection to LGBTQI+ children than the rule provides. The proposed rule did not include this provision. VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 Section 1355.34(c) Criteria for Determining Substantial Conformity Section 1355.34(c)(2)(i) describes an amendment to the Child and Family Services Review (CFSR) to monitor compliance with requirements in § 1355.22(b)(1). Comment: Several commenters expressed support of this provision; however, one state expressed concern with monitoring the proposed placement provisions through the CFSR, stating it is already a cumbersome review process. In addition, a few commenters provided recommendations that are not within the purview of this final rule, such as changing the overall CFSR process and others suggested expanded monitoring processes in addition to the CFSR. Several commenters raised the concern that the proposed rule’s prohibition on retaliation would not be enforced. Response: We are modifying the final rule to expand the requirements in the rule to be monitored through the CFSR to include the retaliation provisions in paragraph (d) and Designated Placements and services requirements in paragraph (b), as applicable. Under the current CFSR regulations, the Children’s Bureau reviews how state title IV–E agencies ensure the appropriateness of foster care placements as required by the title IVE/ IVB case review system. Monitoring through the CFSR is the appropriate vehicle because the final rule implements these statutory case review system requirements that agencies must meet for LGBTQI+ children in foster care. Comment: One state questioned how ACF intends to monitor compliance with these regulations and whether ACF anticipates making changes to reporting requirements for LGBTQI+ children and youth. Response: As stated in the NPRM preamble, ACF will monitor both state and tribal title IV–E/IV–B agency plan compliance with the requirements of § 1355.22 using the partial review process outlined in § 1355.34(c)(2)(i). If ACF becomes aware of a potential noncompliance issue with § 1355.22, it will initiate the partial review process. In addition, the final rule now includes monitoring a state agency’s compliance with § 1355.22(b) and (d) through the CFSR. Related to changes in reporting, the requirements in the final rule must be included in the state or tribe’s title IV–E plan that ACF must review and approve. Comment: One commenter recommended HHS clarify how, if at all, this proposed rule will impact state PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 laws and questioned whether it was HHS’s position that this rule will preempt state law? Would such state laws disqualify states from receiving funding for foster care or lead to an enforcement action by HHS? One commenter expressed concern that enforcing the requirements for safe and appropriate placements for LGBTQI+ children would constitute Federal overreach. The commenter also stated that the final rule would ‘‘enforce a narrow definition of this requirement that usurps a state’s constitutional authority to determine what is in the best interests of a child in its foster care system.’’ Response: ACF refers commenters to our responses in section IV of the preamble to comments regarding federalism, nondelegation and Spending Clause concerns. As noted there, this rule does not preempt generallyapplicable state laws. Rather, it interprets key terms regarding the care title IV–E/IV–B agencies must provide to foster children in order to qualify for the Federal title IV–B and IV–E Federal financial assistance programs. ACF also refers commenters to the new § 1355.22(m), entitled ‘‘No effect on more protective laws or policies,’’ which is discussed above. Comment: A few commenters recommended to expand agency accountability beyond monitoring through the CFSR or to modify the CFSR process. Suggestions included to engage with impacted youth and families, youth advisory boards, and other experts, develop qualitative data collection and reporting processes, and provide annual reports to ACF. Response: ACF reviewed the suggestions provided but we are not making any changes to add other monitoring requirements. Several of the recommendations are outside the authority of this final rule because they are suggestions for changing ACF’s monitoring process or adding new monitoring processes for the provisions in the rule. However, ACF would like to note that the CFSR process includes reviewing qualitative data and consultation with youth and others as required under those regulations. For example, as part of the Round 4 CFSRs, through a series of focus groups, 18 young people with self-identified lived child welfare experience were asked about the best methods of recruiting, engaging, supporting, and retaining young people in all aspects of the CFSRs. Final Rule Changes: ACF is retaining the provision in the final rule as proposed to review § 1355.22(b)(1) (which was numbered as § 1355.22(a)(1) E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations in the NPRM) and adding provisions to also review § 1355.22(b) and (d) through the CFSR, which is the authority that governs reviews of title IV–B and IV–E programs. lotter on DSK11XQN23PROD with RULES7 Comments on Cross-Cutting Issues In the proposed rule, ACF requested public comment on various topics and provisions in the NPRM. Responses to these questions are described below. Kinship Caregivers In the NPRM, we requested public comment on how agencies can best comply with the requirements of the proposed rule and prioritize placements with kinship caregivers. In particular, we invited public comment on what resources agencies might need from HHS to support kinship caregivers in caring for an LGBTQI+ child. Comments: Many commenters suggested that kinship caregivers should have access to specific training and support to ensure that they can provide a caring and nurturing environment for their LGBTQI+ child in foster care. Several commenters emphasized that the training should be culturally responsive and developed, delivered, and evaluated in partnership with youth with lived experience in foster care, kinship caregivers, and foster parents. They identified specific programs such as Family Builders’ Youth Acceptance Project, Affirm for Caregivers, and Trans-Generations. A few commenters suggested specific faith-based trainings or faith-based partnerships to train and support religious families and kinship caregivers to promote family reconciliation and preservation, decreasing the need for foster care services, and improving outcomes for LGBTQI+ youth. Many commenters expressed that Federal funding for recruitment, retention, and support of kinship caregivers is limited, and made suggestions for additional or enhanced funding for title IV–E/IV–B agencies. Several commenters recommended flexibility for states to offer exceptions or alternatives to the requirements of this rule for kinship caregivers when it is in the best interest and desire of a child. A few commenters also urged HHS to enhance support for kinship placements, such as finding ways for agencies to get more Federal funding for pre-placement and in-placement supports, like mental or behavioral health services, skills-based trainings, and the ability to become a therapeutic foster home. They suggested that agencies enhance the staff dedicated to kinship support, increase engagement VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 with kin early in a case, increase assistance to kinship navigator programs, and offer more support to kin to become licensed. Other commenters said that LGBTQI+ children should not be placed with kin caregivers unless those caregivers have been designated as supportive for LGBTQI+ youth, meeting the requirements the rule would impose on any other placement. Response: ACF recognizes the vital role that kin caregivers play in supporting children in the child welfare system. Indeed, a robust body of evidence suggests that children in foster care have better outcomes when they are placed with kin caregivers.33 ACF appreciates the opportunity to clarify that title IV–E/IV–B agencies are encouraged to continue their work to improve access to kinship care alongside implementing the requirements of this regulation. Indeed, ACF anticipates that in many instances, expanding access to kinship care and complying with the requirements of this rule will not be in tension. For example, some LGBTQI+ children may enter the foster care system unrelated to a familial conflict over their sexual orientation or gender identity. Other children who enter foster care because of a conflict with family over their LGBTQI+ status or identity may have a supportive relative who is willing to serve as a kin caregiver and a Designated Placement. While ACF is not adopting commenter’s requests to include an exception from the requirements of this rule for kin caregivers, ACF has revised the final rule, as explained above, to provide that when a request for a placement change or services is made, the title IV–E/IV–B agency must consider whether additional services and training would allow the current provider to meet the conditions for a Designated Placement. If so, the title IV– E/IV–B agency must use the case review system to regularly review the status of a placement that has elected to become a Designated Placement to ensure progress towards meeting the conditions of such a designation. These steps would also apply to kin placements. 33 Epstein, (2017) Kinship Care is Better for Children and Families; Generations United. (2016). Children Thrive in Grandfamilies: https:// www.grandfamilies.org/Portals/0/Documents/ General%20Kinship%20Publications/ ABA%20CLP%20full%20kinship%20edition%20%20julyaug2017.pdf. Miller, ‘‘Creating a Kin-First Culture,’’ July 1, 2017; Child Welfare Information Gateway. (2022). Kinship care and the child welfare system. U.S. Department of Health and Human Services, Administration for Children and Families, Children’s Bureau. https://www.childwelfare.gov/ pubs/f-kinshi/). PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 34843 ACF strongly encourages title IV–E/ IV–B agencies to identify or develop services that effectively prioritize preserving placement stability by offering kin caregivers the resources, training, and support needed to serve as Designated Placements and otherwise meet the specific needs of LGBTQI+ children. In many instances, ACF anticipates that kin caregivers will be the provider who can best meet the needs of an LGBTQI+ child. In some cases, the kinship caregiver will not wish to seek designation or serve as a supportive placement for a child as identified in paragraph (b)(1). Where the child prefers the kinship placement, and where the kinship caregiver can provide a safe and appropriate placement under this rule, even if it is not a Designated Placement as outlined in paragraph (b)(1), the kinship placement may often be in the children’s best interest; in those circumstances, the kinship placement would not be inconsistent with this rule. As the proposed rule laid out, title IV–E agencies may use Federal IV–E funds to provide trainings for providers seeking to become a Designated Placement or to recruit new Designated Placement providers. We appreciate the opportunity to clarify that providing additional resources and training to kinship caregivers to allow them to serve as a Designated Placement for an LGBTQI+ child, when caregivers choose to do so, would be an allowable use of IV–E funds. In addition, a recently published ACF final rule allows a title IV–E agency to claim title IV–E Federal financial participation (FFP) for the cost of foster care maintenance payments (FCMP) on behalf of an otherwise eligible child who is placed in a relative or kinship licensed or approved foster family home when the agency uses different licensing or approval standards for relative or kinship foster family homes and non-relative foster family homes.34 Impact of the Regulation on Foster Provider Availability and Participation Requests for Comment on Recruitment of Providers To Support LGBTQI+ Children In the NPRM, we requested public comment on how ACF can best support agencies in recruiting providers who 34 45 CFR part 1355. See 88 FR 66700, September 28, 2023 (https://www.federalregister.gov/ documents/2023/09/28/2023-21081/separatelicensing-or-approval-standards-for-relative-orkinship-foster-family-homes#:∼:text= In%20addition%2C%20the%20final %20rule,related%2Fnon%2Dkinship%20foster%20 family). E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 34844 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations will be able to provide safe and appropriate placements for LGBTQI+ children. Comments: Many commenters responded with several suggestions on how to support states and tribes’ recruitment efforts. Some commenters expressed concern that Federal funding for recruitment, retention, and support for foster family caregivers is limited. They suggested that HHS convene workgroups and provide more guidance/best practices/technical assistance on recruitment strategies for foster family homes, collaborate with agencies to provide training for prospective foster families and employees of childcare institutions, make additional financial resources available to foster families, target assistance to rural areas, and adopt nondiscrimination protections prohibiting agencies from rejecting prospective LGBTQI+ providers. Other commenters made suggestions on how title IV–E/IV–B agencies can increase their pool of available providers. They suggested regularly reporting to state legislatures and the public on the pool of available providers and recruitment efforts. Several commenters recommended that agencies expand partnerships with organizations representing/working with the LGBTQI+ community, faith organizations, and individuals with lived experience, and increase use of social media to enhance recruitment within the LGTBQI+ community. They encouraged agencies to be flexible in delivering foster family trainings (such as flexible times, virtual, etc.) and to also recruit people to support LGBTQI+ youth in other ways, such as being a guardian ad litem or mentor. A few commenters made suggestions on revisions to the training curriculum related to recruitment, such as including modules on youth development. Response: ACF appreciates commenters’ recommendations for how title IV–E/IV–B agencies can improve recruitment of providers and foster families to serve as Designated Placements. ACF agrees these are promising practices and may share additional best practices and technical assistance through additional guidance. As clarified in the NPRM, IV–E agencies may draw down funds under title IV–E for certain activities to comply with this rule, including recruiting and training providers to be Designated Placements. Concerns About a Shortage of Providers Comment: Many commenters (both in support and opposition of the NPRM) expressed a concern that the proposal’s provisions would exacerbate a VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 nationwide shortage of placements and services. Commenters said that the NPRM focuses on recruiting placements for LGBTQI+ children instead of all children in foster care. They also argued the NPRM did not include providing support for families and kin to become safe and supportive homes for LGBTQI+ children and expressed concern that this could lead to children being placed outside of their communities or separation from siblings. They expressed concerns either that faithbased providers would be ‘‘disqualified’’ from being placements or ‘‘driven away’’ due to their views, or that the NPRM would lead to agencies labeling faith-based families as ‘‘hostile’’ or ‘‘abusive’’ due to sincerely held religious beliefs. Moreover, a commenter stated that placing the onus on states and tribes to confirm and affirm that a foster family home is safe and appropriate when there is already a shortage of foster homes will end up hurting the children that this regulation is purporting to protect. One commenter questioned the NPRM’s assertion that enough foster parents can be found to replace those that would be lost as a result of their religious beliefs. A few commenters elevated concerns about the lack of behavioral health care providers who specialize in working with LGBTQI+ youth. Some commenters were concerned that LGBTQI+ training would be added to the list of caseworker requirements without considering the capacity of the workforce to provide quality services. Another commenter said that some states already have a reimbursement structure that considers the unique needs of individual children and felt this NPRM would be cumbersome to implement. Some commenters offered suggestions, including: • Issuing ACF guidance on how agencies should balance the requirements of this NPRM with other placement considerations such as: prioritizing kinship placements; no placement change unless a child is unsafe; conferring with youth on whether they want to remain in the current placement; and factors such as sibling unification, least restrictive setting, school, friends, and community. • Utilizing incentives for recruiting more placements and evidence-based trainings/resources for supporting the child welfare workforce and providers to become Designated Placements. • Building in flexibility for agencies to make exceptions or alternatives to Designated Placement criteria for kinship caregivers, emergency, and short-term placements, to offer religious PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 exemptions for staff members, and to consider the best interest of a child. Response: ACF appreciates the concerns raised by commenters about potential impacts of the final rule on the availability of services and placements. In response to these comments and suggestions offered, we note that the rule provides a two-year ramp up period for title IV–E/IV–B agencies; that title IV–E funds may be used for recruitment and training efforts; and that we have clarified in the final rule how kin and other potential or existing placements for LGBTQI+ children can be supported to become Designated Placements. ACF also notes that the NPRM did not assert that recruitment of foster parents to provide LGBTQI+ supporting placements would ‘‘replace’’ providers who did not seek to qualify as Designated Placements. Rather, ACF anticipates that additional outreach efforts by states and tribes to recruit providers will expand, not reduce, overall supply. And in response to comments expressing concern that some providers and families would be lost or disqualified from providing foster placements, we added language to the final rule clarifying it shall not be construed to require or authorize penalization of any provider that is not considered or seeking consideration as a Designated Placement for LGBTQI+ children. When states and tribes select organizations to participate in the child welfare program, ACF would recommend that states and tribes do not adopt selection criteria that disadvantage any faith-based organizations that express religious objections to providing Designated Placements for LGBTQI+ children. Youth Disclosure of LGBTQI+ Status Comment: Many commenters stated that by requiring that LGBTQI+ youth request a supportive placement, that they will be forced to disclose their sexual orientation or gender identity, and that forcing children to ‘‘come out’’ in order to receive services places an unfair onus on them. Several commenters provided suggestions for how to ascertain a youth’s sexual orientation and gender identity information. Several commenters recommended varying ages at which it would be appropriate for a caseworker to inquire about a child’s identity. Commenters said it was important to inform youth that there are resources available as part of regular, ongoing case practice. Others felt there may be many reasons why a youth will choose to not disclose their sexual orientation and gender identity, such as preventing a change in placement to stay with E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations siblings, avoiding changing schools, or leaving communities. Examples shared included a fear of coming forward to identify as LGBTQI+ due to unforeseen consequences in their lives or a fear of rejection—consequences that represent an added burden for youth already navigating stressful experiences. Commenters questioned how the NPRM’s provisions would help these youth, or youth who would be ‘‘presumed’’ to be cisgender/ heterosexual, and that choosing nondisclosure should not prevent them from being treated appropriately. Response: ACF understands many LGBTQI+ children may choose not to disclose their LGBTQI+ identity to their caseworker. Commenters cited research showing that two key reasons LGBTQI+ children in foster care choose not to share their sexual orientation or gender identity with their caseworker are (a) fear of rejection by the caseworker and (b) fear of a placement change. Some measures to allay those fears were provided in the NPRM and remain in the final rule, including (a) ensuring that Title IV–B and IV–E agency employees who have responsibility for placing children in foster care, making placement decisions, or providing services are adequately prepared with the appropriate knowledge and skills to serve an LGBTQI+ child related to their sexual orientation, gender identity, and gender expression, and (b) prohibiting an unwarranted placement change as a form of prohibited retaliation due to a child’s disclosure of or perceived LGBTQI+ status or identity. To further address these concerns, the final rule adds the requirement that the notice to inform children of the availability of Designated Placements or services to make their current placement more supportive must include informing the child that under no circumstances will there be retaliation against them for disclosure of their LGBTQI+ status or identity or their request for a Designated Placement, and to describe the process by which a child may report a concern about retaliation. To further address commenters’ concerns that children’s fears that a request for a new placement will necessarily result in a placement change and possible separation from siblings and community, as well as the concerns of commenters who said it was important to inform youth that there are resources available as part of regular, ongoing case practice, ACF made changes in the final rule at § 1355.22(b)(2) to require providing a child: 1) with the option to request their current placement be offered services to become a Designated Placement; and 2) VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 with an opportunity to express their needs and concerns. Further, § 1355.22(b)(3) of the final rule requires that, before initiating any placement changes, the title IV–E/IV–B agency must consider whether additional services and training would allow the current provider to meet the conditions for a Designated Placement, if the current provider wishes to do so, rather than necessarily generating a placement change, particularly for children placed with kin, siblings, in close proximity to their family of origin, and/or in a family-like setting. The final rule also adds at § 1355.22(d)(2)(iii) that prohibited retaliation against a child with or perceived to have an LGBTQI+ identity or status includes restricting access to siblings and family members. In response to commenters who stated that children choosing not to disclose their LGBTQI+ identity should not prevent them from being treated appropriately, the final rule expands the definition of prohibited retaliation, requires informing children about protections from retaliation, and expands the notification requirements to subcontractors and providers of the prohibition on retaliation based on a child’s actual or perceived LGBTQI+ status or identity. Specifically, as noted above, the final rule requires the notification of the availability of Designated Placements to provide information on the prohibition on retaliation and how to report retaliation. Further, the final rule retains the requirement from the NPRM that the title IV–E/IV–B agency must ensure that LGBTQI+ children have access to age- or developmentally appropriate services that are supportive of their sexual orientation and gender identity, including clinically appropriate mental and behavioral health supports, and must ensure that all 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 including the requirement to comply with prohibitions on retaliation. The final rule extends the requirement of informing placement providers of procedural requirements, including the prohibition on retaliation, to all providers. Research on LGBTQI+ Children in Foster Care In the NPRM, we described a significant body of evidence demonstrating that LGBTQI+ youth are overrepresented in the child welfare system and face worse outcomes. PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 34845 Comment: Many commenters expressed their support and appreciation for the proposed rule’s overview of research on the disparities that LGBTQI+ youth face in foster care. Other commenters raised concerns about specific studies cited by HHS. Some commenters argued that data cited by HHS overstates the extent of LGBTQI+ children in the foster care population, criticizing one study cited as having a small sample size and citing a previous local survey from 2014 which found 19 percent of foster youth surveyed identify as LGBTQI+. Response: ACF thanks the commenters for their support for the rule’s discussion of research on the disparities that LGBTQI+ youth face in foster care. In response to concerns about studies about the size of the LGBTQI+ foster youth population, ACF based its estimate on the three recent studies cited above, one of which is a more recent (2021) local survey than the 2014 local survey, and two others which draw on larger data sources (national data in one case and California statewide data in the other).35 Comment: One commenter stated that research about the impact of family acceptance or rejection on LGBTQI+ youth is methodologically flawed. Response: ACF believes that two key studies cited in the NPRM about the impact of family acceptance or rejection on LGBTQI+ youth have sound methodology. The first utilized quantitative scales to assess retrospectively the frequency and nature of parent and caregiver responses to a lesbian, gay, or bisexual (LGB) sexual orientation in adolescence. The study was based on in-depth interviews with 224 LGB young adults aged 21–25 and found dramatic disparities in health outcomes between youth who experienced high levels of family rejection compared to those who experienced low levels of family 35 Baams, Laura., Stephen T. Russell, and Bianca D.M. Wilson. LGBTQ Youth in Unstable Housing and Foster Care, American Academy of Pediatrics, Volume 143, Issue 3, March 2019, https://doi.org/ 10.1542/peds.2017-4211. Fish, J., Baams, L., Wojciak, A.S., & Russell, S.T. (2019), Are Sexual Minority Youth Overrepresented in Foster Care, Child Welfare, and Out-of-Home Placement? Findings from Nationally Representative Data. Child Abuse and Neglect, https://www.ncbi.nlm. nih.gov/pmc/articles/PMC7306404/. Institute for Innovation and Implementation at University of Maryland’s School of Social Work and the National Quality Improvement Center on Tailored Services, Placement Stability, and Permanency for LBTQ2S Children and Youth in Foster Care (2021). Cuyahoga Youth Count: A Report on LGBTQ+ Youth Experience in Foster Care, https:// theinstitute.umaryland.edu/media/ssw/institute/ Cuyahoga-Youth-Count.6.8.1.pdf. E:\FR\FM\30APR7.SGM 30APR7 34846 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 rejection.36 An additional study cited in the NPRM on the critical importance of accepting caregiver behavior for positive mental health outcomes for LGBTQI+ youth was based on a 2022 survey of over 30,000 LGBTQ youth in the United States, which included questions regarding considering and attempting suicide that were identical to those used by the Centers for Disease Control and Prevention (CDC) in their Youth Risk Behavior Surveillance System (YRBS) and had overall findings which were corroborated by data from the YRBS survey.37 Other studies find that it is ‘‘clear from existing research that family acceptance and rejection is crucial to the health and well-being of LGBT youth.’’ 38 This illustrates the importance of Designated Placements for LGBTQI+ children in foster care. Comment: Two commenters criticized a 2021 study, which showed that children in foster care who identify as LGBTQI+ report a perception of poor treatment by the foster care system more frequently than their non-LGBTQI+ counterparts, as having ‘‘significant limitations.’’ 39 Response: The data in this study is corroborated by five other studies cited by HHS.40 Children in foster care who 36 Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009). Family rejection as a predictor of negative health outcomes in white and latino lesbian, gay, and bisexual young adults. Pediatrics, 123(1), https://publications.aap.org/pediatrics/articleabstract/123/1/346/71912/Family-Rejection-as-aPredictor-of-Negative-Health?redirectedFrom=full text. 37 The Trevor Project, 2022 National Survey on LGBTQ Youth Mental Health, https://www.thetrevor project.org/survey-2022/assets/static/trevor01_ 2022survey_final.pdf. 38 Katz-Wise SL, Rosario M, Tsappis M. Lesbian, Gay, Bisexual, and Transgender Youth and Family Acceptance. Pediatr Clin North Am. 2016 Dec;63(6):1011–1025. doi: 10.1016/ j.pcl.2016.07.005. PMID: 27865331; PMCID: PMC5127283, https://www.ncbi.nlm.nih.gov/pmc/ articles/PMC5127283/. 39 Matarese, M., Greeno, E., Weeks, A., Hammond, P. (2021). The Cuyahoga youth count: A report on LGBTQ+ youth’s experience in foster care. Baltimore, MD: The Institute for Innovation & Implementation, University of Maryland School of Social Work, https://theinstitute.umaryland.edu/ media/ssw/institute/Cuyahoga-YouthCount.6.8.1.pdf. 40 McCormick, A., Schmidt, K., and Terrazas, S. (2017) LGBTQ Youth in the Child Welfare System: An Overview of Research, Practice, and Policy, Journal of Public Child Welfare, 11:1, 27–39, DOI: 10.1080/15548732.2016.1221368, https://doi.org/ 10.1080/15548732.2016.1221368. Wilson, B.D.M., Cooper, K., Kastanis, A., & Nezhad, S. (2014), Sexual and Gender Minority Youth in Foster care: Assessing Disproportionality and Disparities in Los Angeles, The Williams Institute, UCLA School of Law, https://williamsinstitute.law.ucla.edu/wpcontent/uploads/SGM-Youth-in-Foster-Care-Aug2014.pdf. Poirier, J., Wilkie, S., Sepulveda, K & Uruchima, T., Jim Casey Youth Opportunities Initiative: Experiences and Outcomes of Youth Who Are LGBTQ, 96.1 Child Welfare, 1–26 (2018), https://www.proquest.com/docview/ VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 identify as LGBTQI+ are less likely to report at least ‘‘good’’ physical and mental health and are less likely to have at least one supportive adult on whom they can rely for advice or guidance, than their non-LGBTQI+ counterparts in foster care.41 Comment: Other commenters criticized a study on mental health disparities faced by LGBTQI+ youth as being unreliable and subject to bias. Response: We note that the study cited by HHS is based on a sample size of over 40,000 youth surveyed and provides the adjusted odds ratio and a probability value of under .001 (showing that results are highly unlikely to be due to chance), and the NPRM cited two additional studies showing disproportionately poor mental health outcomes for LGBTQI+ foster youth.42 Nondiscrimination Provisions Comments: Several commenters suggested that ACF issue stronger language on protections for children in foster care from discrimination on the basis of disability and gender identity. They specified that there are no antidiscrimination laws in many states to prohibit discrimination against LGBTQI+ prospective foster parents. Another commenter suggested that ACF adopt a similar anti-discrimination policy as in other Federal programs. Other commenters recommended that the final rule forbid discrimination based on any characteristics in any part of the child welfare system. They argued 2056448464.https://www.proquest.com/docview/ 2056448464. Wilson, B.D.M., & Kastanis, A.A. (2015). Sexual and gender minority disproportionality and disparities in child welfare: A population-based study. Children and Youth Services Review, 58, Pages 11–17, ISSN 0190–7409, https://doi.org/10.1016/j.childyouth.2015.08.016. Mountz, S., Capous-Desyllas, M., & Pourciau, E. (2018). ‘Because we’re fighting to be ourselves:’ voices from former foster youth who are transgender and gender expansive. Child Welfare, Suppl.Special Issue: Sexual Orientation, Gender Identity/Expression, and Child Welfare, 96(1), 103– 125, https://www.proquest.com/scholarly-journals/ because-were-fighting-be-ourselves-voices-former/ docview/2056448509/se-2. 41 Jeffrey Poirier, Jim Casey Youth Opportunities Initiative: Experiences and Outcomes of Youth Who Are LGBTQ, 96.1 Child Welfare, 1–26 (2018), https://www.proquest.com/docview/2056448464. 42 Institute for Innovation and Implementation at University of Maryland’s School of Social Work and the National Quality Improvement Center on Tailored Services, Placement Stability, and Permanency for LBTQ2S Children and Youth in Foster Care (2021). Cuyahoga Youth Count: A Report on LBTQ+ Youth Experience in Foster Care, https://theinstitute.umaryland.edu/media/ssw/ institute/Cuyahoga-Youth-Count.6.8.1.pdf. Wilson, B.D.M., Cooper, K., Kastanis, A., & Nezhad, S. (2014), Sexual and Gender Minority Youth in Foster care: Assessing Disproportionality and Disparities in Los Angeles, The Williams Institute, UCLA School of Law, https://williamsinstitute. law.ucla.edu/wp-content/uploads/SGM-Youth-inFoster-Care-Aug-2014.pdf. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 that foster children, parents, kin caregivers, and prospective and current foster and adoptive parents have constitutional rights to due process and equal protection. A commenter also stated that ‘‘discrimination is the proper and appropriate term instead of retaliation’’ as that term was used in the proposed rule. Response: Both the NPRM and this final rule focus on improving how the child welfare system meets the particular needs of LGBTQI+ foster children, based on the extensive evidence showing the difficulties those children disproportionately face. ACF is open to considering future policymaking that would address discrimination in broader ways, including discrimination on the basis of other characteristics, where ACF has legal authority to do so. We note that HHS’s Office for Civil Rights enforces several statutes that prohibit various forms of discrimination in programs funded by the Department, including the title IV–E/IV–B program. Those statutes include section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, which prohibits disability discrimination by recipients of Federal financial assistance, and title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, which prohibits discrimination by recipients of Federal financial assistance on the basis of race, color, or national origin, including discrimination on the basis of shared ancestry and ethnic characteristics.43 The Department has already promulgated regulations implementing these prohibitions, see 45 CFR part 80 (title VI); id. part 84 (section 504). On September 14, 2023, HHS issued a proposed rule to update its section 504 regulation. 88 FR 63392. Whether additional antidiscrimination rules are necessary or consistent with ACF’s statutory authority would be appropriately considered after the conclusion of this rulemaking. In regard to the comment arguing for the use of ‘‘discrimination’’ in the place of retaliation, retaliation is, by definition, an intentional act. It is a form of discrimination because the individual in question is being subjected to differential treatment. Cf. Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) (holding that retaliation is a form of intentional discrimination under title IX of the Education Amendments of 1972). We use the term ‘‘retaliation’’ in the final rule because a key goal of this provision is to ensure 43 https://www.hhs.gov/civil-rights/forindividuals/special-topics/shared-ancestry-orethnic-characteristics-discrimination/. E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations that children do not experience harm that might deter them from seeking or benefiting from the protections afforded by the rule. lotter on DSK11XQN23PROD with RULES7 Implementation Costs In the NPRM, we requested comments on whether state and tribal agencies are likely to incur additional substantial costs as a result of this rulemaking. Comments: Numerous commenters stated there would be additional costs to implement this proposal and increased costs for FFP matching, some stating that the NPRM’s estimates were too low and others describing the cost increases as ‘‘substantial’’ or ‘‘significant.’’ State and state attorneys general commenters were generally concerned about increasing costs to expand recruitment, retention, and training of providers, to reprogram case management systems to track costs and notification requirements, and to enforce and monitor the retaliation provisions. States also expressed a concern with the increased cost for children who are not title IV–E eligible, which is outside of the scope of this rule. Response: ACF acknowledges there will be state and tribal costs to implement the final rule. Responses to comments on the cost estimate are provided in the Annualized costs to the Federal Government section. ACF is providing a more than two-year implementation period to allow time for states and tribes to address their unique funding issues. We also reiterate that title IV–E agencies may claim allowable recruitment and training costs under the title IV–E foster care program. Requests for Technical Assistance and Implementation Supports and Questions About Implementation and Compliance Monitoring In the NPRM, we requested public comment on how ACF can best support agencies, including those located in rural and other resource-limited areas, in fulfilling a placement that will facilitate access to age-appropriate resources, services, and activities for LGBTQI+ children in foster care. Comments: Many commenters responded with several recommendations on how ACF can support agencies, providing additional funding/or grants for expanding and reimbursing service costs (e.g., transportation, technology aids). A few organizations recommended ACF provide technical assistance/consultants to support rural provider recruitment. Other commenters recommended ACF utilizing local faith-based services, developing a national resource list of providers including virtual/online or VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 telehealth services, and requiring agencies to display available resources and hotlines and to note the technical assistance that is available. Response: We appreciate the comments and suggestions. While we are not making any changes to the final rule related to this, there are numerous technical assistance resources available through CB, for example the Capacity Building Center for States and the National Center for Diligent Recruitment. The primary manner in which ACF can support state and tribal efforts is through CB’s technical assistance providers, which is addressed in detail in the below response to comment. Comments: Many commenters requested technical assistance, sought specifics on how compliance will be monitored, and asked questions about implementation. Several commenters recommended changes to the NPRM that would require providers to notify the agency, describe children and provide a rationale for whom they are ‘‘unwilling or unable to provide safe and appropriate placements or care.’’ A few commenters suggested clarification and support for challenges related to the Interstate Compact on the Placement of Children, such as the need for more placements across jurisdictional lines. Some commenters asked for clarification on licensing requirements for childcare institutions and foster family homes regarding room sharing based on gender identity and procedures for foster parents, such as identifying the children for whom they are willing to provide a home. One commenter recommended a targeted plan for specially designated placements for LGBTQI+ children within the five-year Child and Family Services Plans (CFSPs) in the NPRM. Many commenters suggested that HHS provide extensive training guidance through implementation guidelines, more funding for family acceptance training, and pilot programs in rural areas regarding the NPRM’s provisions. Commenters requested technical assistance on capacity building and recruitment strategies. Many commenters asked for clarification on how agencies should respond in circumstances where providers and agencies cannot fulfill the requirements of the NPRM and on ‘‘accountability’’ for the provisions. Response: On behalf of the Children’s Bureau (CB), the Capacity Building Center for States (the Center) helps state and territorial child welfare agencies strengthen, implement, and sustain effective child welfare practices. The Center provides tailored technical PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 34847 assistance to states and territories on a wide array of topics to improve outcomes and overall system functioning, including support for states in implementing this final rule. At the request of a jurisdiction (or the Children’s Bureau), customized assistance is available to support effective program improvement efforts. In collaboration with the state or territory (and counties as appropriate) and the Children’s Bureau, the Center assists child welfare agencies in implementation and program improvement efforts. Center technical assistance support may include training, coaching, curriculum development, data analysis and individualized program consultation. Each state or territory has an identified Center Liaison who can assist in initiating technical assistance. Liaison contact information for each state and territory is readily available via the Center’s website. On behalf of the Children’s Bureau, the Capacity Building Center for Tribes (the Center for Tribes) is also available to assist tribes with implementing the final rule. The Center for Tribes collaborates with American Indian and Alaska native nations to help strengthen tribal child and family systems and services. The Center for Tribes offers an array of services, including peer networking activities and individualized expert consultation. These services are available at no cost to assist with improving tribal child welfare practice and performance in several key areas, such as recruiting and training families to meet the individualized needs of children in care. In addition, the Children’s Bureau has recently funded the National Center for Diligent Recruitment, a new component of the AdoptUSKids project. This national center provides multiple forms of free technical assistance to support states, tribes, and territories in developing and implementing strategic, data-driven diligent recruitment plans. The goals of the technical assistance are to increase capacity to effectively collect and analyze quantitative and qualitative data to guide targeted recruitment efforts; to provide on-site, tailored support for the work of states, tribes, and territories in constructing robust diligent recruitment plans based on evidence-informed and evidence-based research; and to further the evidencebase of family finding, relative outreach, reunion support, and intensive recruitment and retention services within the communities of origin of the children/youth in the foster care system. With respect to the suggestions regarding the Interstate Compact on the E:\FR\FM\30APR7.SGM 30APR7 34848 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations Placement of Children (ICPC), the Federal Government has no authority over the ICPC. Rather the compact amendments are made and ratified through agreement among the Compact members and the incorporation of those changes in respective state statutes. There is a minimum requirement of member states agreeing to changes before the Compact itself is ratified. This is outside the scope of this rule. IV. Response to Comments Raising Statutory and Constitutional Concerns lotter on DSK11XQN23PROD with RULES7 First Amendment and Religious Freedom Comment: As discussed above in section III of this preamble, many commenters expressed concerns that religious families and organizations will have sincerely held religious beliefs and practices that conflict with the rule and as a result those families and organizations will be deemed to not be ‘‘safe and appropriate’’ by the Federal Government. These commenters asserted that both individuals and organizations of faith will be discouraged from applying or continuing to provide foster care services because they will be penalized for their beliefs and practices. Other commenters expressed concern that the proposed rule violates providers’ First Amendment right to religious liberty. Commenters asserted that the proposed rule would prohibit them from fully participating in the foster care program. For example, commenters said that expressing or practicing their sincerely held beliefs about gender, sexuality, or marriage to a foster child in their home could result in being labelled as hostile or unsafe for the child. Other commenters asserted that the rule will result in faith-based providers and individuals being excluded from helping large numbers of children in foster care. One commenter said that if ACF’s data is accurate, excluding such providers would preclude them from providing care to potentially one-third of older children in foster care age 12– 21. Another commenter said that it is important to protect faith-based agencies from regulations that run contrary to their beliefs and practices; such protection, the commenter asserted, will ensure a diverse set of agencies to serve diverse populations, including placing children with specific or special needs such as older children and sibling groups. Response: ACF values the vital role that religious families and faith-based organizations play in providing care and VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 services for children in the Child Welfare program and appreciates that many families are compelled by their faith to offer safe and loving foster homes. As noted previously, the final rule has been revised to clarify the general requirement that all providers must provide safe and appropriate placements for all foster children, and we believe this clarification will avoid any unintended implication that providers not wishing to offer Designated Placements would not be considered safe and appropriate. ACF disagrees with the commenter’s suggestion that this final rule discriminates against faith-based providers, as none of the provisions disqualify eligible providers from participating in the title IV–E and IV–B programs because of their religious character. Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2255 (2020) (citing Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017)). This rule welcomes faith-based organizations and religious foster parents to continue participate in the program, and ACF anticipates that many will choose to do so without any religious objections. The obligation to provide an environment that supports the child’s LGBTQI+ status or identity under this rule applies only to those providers who have chosen to be Designated Placements. We anticipate that numerous faith-based organizations and religious foster parents will choose to be Designated Placements. But this rule does not require any provider to make that choice, and it does not impose any penalty or adverse consequence on providers with religious objections to serving as a Designated Placement. Indeed, the final rule makes clear in paragraph (j) that nothing in the rule requires or authorizes a state or tribe to penalize a provider that—for whatever reason—chooses not to be a Designated Placement. Rather, the rule places the responsibility on states and tribes—rather than on providers—to find Designated Placements for LGBTQI+ identifying children. ACF agrees that it is important to protect faith-based agencies from any obligation to comply with a regulatory requirement that violates statutory or constitutional protections of religious freedom. It is also important to retain a diverse set of agencies to serve diverse populations. ACF has determined that this regulation is consistent with these goals. In ACF’s view, this rule should not dissuade any entity that does not meet the definition of a Designated Placement, whether for religious or secular reasons, from continuing to PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 participate in the foster care program. ACF does not anticipate that this rule will cause faith-based providers to discontinue their participation in the program, or that it will substantially reduce the number of placement agencies available for children. ACF expects that states and tribes will not impose burdens on religious exercise when they have the discretion to work with the objections of a faith-based provider, and that any faith-based provider with a religious objection to a requirement in this rule will exercise their right to seek an accommodation by submitting a request to their state’s or tribe’s title IV–E/IV–B agency, which must promptly forward the request to ACF. ACF takes seriously its obligations under the Constitution and Federal laws supporting religious exercise, freedom of conscience, and free speech, including the First Amendment and RFRA, and will continue to strongly enforce HHS regulations that ensure religious organizations must be considered eligible on the same basis as any other organization to participate in programs administered with title IV–E and IV–B funds. See 45 CFR 87.3(a) (2014) (‘‘part 87’’). That rule prohibits states and tribes from discriminating for or against an organization on the basis of the organization’s religious character, motives, or affiliation, or lack thereof, or on the basis of conduct that would not be considered grounds to favor or disfavor a similarly situated secular organization. Also, that rule states that nothing in that regulation ‘‘should be construed to preclude HHS from making an accommodation, including for religious exercise, with respect to one or more program requirements on a caseby-case basis in accordance with the Constitution and laws of the United States.’’ See 45 CFR 87.3(b) (2014). In addition, this final rule has been revised in paragraph (i) to make clear that if application of any requirement under this rule would violate Federal protections for religious freedom, conscience, and free speech, that application will not be required. Additionally, under part 87 states and tribes must inform grant subrecipients and contractors of their religious freedom rights in both solicitations for sub-grants and awards. See 45 CFR 87.3(n) (2014). ACF will consider any request for religious accommodation under RFRA or any other applicable authority protecting religious freedom to this rule’s requirements. Under ACF’s established practice, a state or tribe may not disqualify from participation in the program a provider that has requested the accommodation unless and until the E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations provider has made clear that the accommodation is necessary to its participation in the program and HHS has determined that it would deny the accommodation. See 45 CFR 87.3(c) and (q) (2014). Comment: A number of commenters expressed concern that a final rule would abridge the First Amendment’s protection of free speech. A commenter wrote that the rule would preclude legitimate sharing of ideas and perspectives and would prevent children and young people in care from encountering ideas and perspectives beyond their current ones. Some commenters argued that requiring agencies and foster families to use a child’s correct pronouns or chosen name would violate the First Amendment by unconstitutionally forcing speech on foster care providers. Commenters argued that the First Amendment does not permit the government to compel ideological speech. Similarly, commenters contended that the rule would impede citizens’ free speech more than would be necessary to achieve legitimate government ends. A commenter wrote that by omitting up-front exemptions, the proposed rule sought to chill speech. A couple of commenters asserted that concepts included in the proposed rule that relate to a child’s identity place individuals and organizations of faith at risk of being accused of retaliation as described in the proposed rule. These commenters wrote that being penalized for retaliation because they were exercising their religious beliefs unconstitutionally infringes on and burdens religious providers’ First Amendment rights both to free speech and free exercise. Response: ACF is committed to upholding First Amendment rights to free speech and religious exercise for all providers and children in the child welfare system. As to the commenters’ concern that this rule violates the Free Speech Clause of the First Amendment, ACF also disagrees for two reasons. First, this rule does not govern the purely independent actions of private parties. Rather, it merely sets the terms on which an entity that chooses to provide services under a federally funded program must provide those services, without imposing any restrictions on any expression those entities engage in outside of the scope of the program. ACF is entitled to ensure that the providers of federally funded services carry out the Federal program in a way that ensures that the purposes of the Federal funding are met. See Rust v. Sullivan, 500 U.S. 173, 192–99 (1991); VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 217 (2013). No individual or entity is compelled to participate as a provider in the title IV–E/IV–B program—and, as this final rule makes clear, even among those who do choose to participate, no provider is compelled to become or seek to become a Designated Placement for LGBTQI+ children. And nothing in the rule purports to regulate any provider in their conduct outside of the scope of the title IV–E/IV–B program. Second, any provider who chooses not to become a Designated Placement must simply comply with longstanding obligations under the title IV–E/IV–B programs to ensure that all foster children are placed in environments that provide safe and appropriate care for all children in foster care, as well as the nonretaliation provisions set forth in this regulation. As this final rule clarifies, the Department anticipates that as a general matter providing a placement that is safe and appropriate or complying with these nonretaliation requirements would not impose a substantial burden on providers’ religious freedom, conscience or free speech rights, even aside from the voluntary nature of a provider’s participation in the title IV–E/IV–B program. For example, as noted in section III of this preamble, a title IV– E/IV–B agency must ensure that each placement is safe and appropriate, meaning that no provider engages in acts of harassment, abuse, or mistreatment. Harassment, mistreatment, and abuse as contemplated by the rule are conduct, not speech. This is particularly so because harassment under the rule requires severe or pervasive acts that create a hostile environment, a standard that applies elsewhere in the law. ACF disagrees with the commenters’ concern that this rule generally violates the Free Speech Clause of the First Amendment or the religious exercise for all providers for several reasons. ACF has a compelling interest in providing these protections for children in the foster system as a general matter. ACF provides Federal funding to states and tribes to provide appropriate foster care placements for all children; to ensure all children are placed consistent with the child’s best interest; and to provide support for meeting the safety, permanency, and well-being needs of all children. As ACF has documented in the preambles for the proposed rule and this final rule, an extensive body of research shows that the treatment LGBTQI+ youth receive from their families and caregivers related to their sexual PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 34849 orientation or gender identity is highly predictive of their mental health and wellbeing, which the title IV–E/IV–B programs serve to protect. This final rule requirement that all providers refrain from retaliating against children because of their sexual orientation or gender identity merely reflects the ordinary requirement that all children be provided safe and proper care in foster care. We expect that in the typical case the rule’s protection against retaliation will be the least restrictive means of furthering the compelling interest in protecting the mental health and wellbeing of LGBTQI+ children. Should a provider establish that an application of the retaliation requirement imposes a substantial burden on the exercise of religion, ACF will assess whether that particular application is the least restrictive means of furthering a compelling interest. However, as to the commenter’s concern that the rule violates the right to religious exercise, we reiterate that Federal protections for religious exercise, and the Department’s regulatory protections for seeking religious accommodation, continue to apply. When applying those protections to a particular case, ACF will consider as appropriate whether the application of this rule’s protections to the particular party is the least restrictive means of furthering a compelling interest. When reviewing any request for religious accommodation ACF will conduct a case-by-case analysis in assessing whether application of the Rule’s protections complies with RFRA and any other relevant Federal religious protection. We also expect title IV–E/ IV–B agencies to similarly engage in assessing whether they are applying this rule and any state’s or tribe’s requirements in the manner that least restricts religious exercise. Comment: A number of commenters noted that language protecting faithbased providers was included in the preamble of the NPRM but not in the regulation text. However, they wrote that the government’s obligation to accommodate the religious freedom and conscience rights of private foster care providers should be incorporated into the rule text to create binding law on the Federal Government, states, and tribes. Response: While the Constitutional and statutory protections would be applicable whether or not incorporated in regulatory text, text has been added at § 1355.22(i) stating that insofar as the application of any requirement under this part would violate applicable Federal protections for religious freedom, conscience, and free speech, such application shall not be required. E:\FR\FM\30APR7.SGM 30APR7 34850 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 ACF further notes that all providers that are impacted by this rule are already covered by an HHS regulation at 45 CFR part 87 that protects religious freedom, nondiscrimination, and conscience rights. Consistent with the regulation at 45 CFR 87.3(n) and (q) as amended in 2014, state and tribal child welfare agencies must ensure that their notices or announcements of award opportunities include language that is substantially similar to that in section (a) of appendix A to part 87. In relevant part, those appendices require that subawards and contracts inform subawardees of their right to carry out child welfare programs consistent with ‘‘religious freedom, nondiscrimination, and conscience protections in Federal law.’’ A provider that requests any religious accommodation may submit the request to its State or Tribal title IV–E/IV–B agency. If the request concerns a religious objection to an obligation that is required or necessitated by this proposed rule as finalized, the title IV– E/IV–B agency must promptly forward the request to ACF, which will consider the request in collaboration with the HHS Office of the General Counsel. Moreover, in response to concerns that the rule might be understood as requiring or authorizing the penalization of providers who decline to provide Designated Placements, the final rule has also been revised, at § 1355.22(j) to provide that nothing in this regulation shall be construed as requiring or authorizing a state or tribe to penalize a provider that does not seek or is determined not to qualify as a Designated Placement from participation in the state’s or tribe’s program under titles IV–E and IV–B. Statutory Authority Comment: A group of state attorneys general commented that they believed the proposed rule exceeded ACF’s statutory authority under titles IV–B and IV–E of the Social Security Act. In support of their position, they argued that the IV–B and IV–E statutory requirements for agencies to ensure that foster children have ‘‘case plans’’ aimed at providing ‘‘safe and proper’’ care and ‘‘appropriate’’ placements that serve their ‘‘best interests’’ with providers who are ‘‘prepared adequately with appropriate knowledge and skills’’ do not authorize ACF to impose the specific requirements of the proposed rule. They describe the statutory requirements that ACF relies on as ‘‘generalized provisions.’’ In addition, these commenters argued that state family laws generally view the best interest of the child standard as flexible VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 and fact-specific in determining appropriate placements, and that Congress did not intend ‘‘to grant HHS this federal veto power over children’s placements.’’ Response: ACF disagrees that this rule exceeds ACF’s statutory authority under titles IV–B and IV–E of the Social Security Act. The rule is consistent with the authority granted to ACF in the statutory provisions cited in the Legal Authority for the Final Rule section of this preamble, which promote the wellbeing and safety of children in foster care: —Titles IV–E and IV–B of the Social Security Act (the Act) require title IV–E/IV–B agencies to provide case plans for all children in foster care that include a plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents’ home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including discussion of the appropriateness of the services that have been provided to the child under the plan. Section 475(1)(B) of the Social Security Act, 42 U.S.C. 675(1)(B). —Agencies must also have case review systems through which they ensure that each foster child’s case plan is ‘‘designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available and in close proximity to the parents’ home, consistent with the best interest and special needs of the child[.]’’ Section 475(5) of the Social Security Act, 42 U.S.C. 675(5)(A). In order to receive title IV–E and IV–B funds, agencies must have plans approved by ACF that provide for case plans and case review systems that meet these statutory requirements. Sections 471(a)(16) and 422(b) of the Social Security Act, 42 U.S.C. 671(a)(16) and 622(b). —States and tribes must certify in their title IV–E plans that they will ensure that before a child in foster care is placed with prospective foster parents, the prospective foster parents ‘‘will be prepared adequately with the appropriate knowledge and skills to provide for the needs of the child [and] that the preparation will be continued, as necessary, after the placement of the child.’’ Section 471(a)(24) of the Social Security Act, 42 U.S.C. 671(a)(24). —Agencies must ensure that foster parents, as well as at least one official at any child care institution providing foster care, receive training on how to use and apply the ‘‘reasonable and prudent parent standard,’’ a standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the State to PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 participate in extracurricular, enrichment, cultural, and social activities. Social Security Act 471(a)(24) and (a)(10) and 475(10)(A), 42 U.S.C. 671(a)(24) and (a)(10) and 675(10)(A). —Agencies must develop and implement standards to ensure that children in foster care placements are provided quality services that protect their safety and health. Social Security Act section 471(a)(22), 42 U.S.C. 671(a)(22). —The Act authorizes the Secretary to review state compliance with the title IV–E and IV–B program requirements. Specifically, the Act requires the Secretary to determine whether state programs are in substantial conformity with state plan requirements under titles IV–E and IV–B, implementing regulations promulgated by the Secretary and the states’ approved state plans. Section 1123A of the Social Security Act, 42 U.S.C. 1320a–2a. As explained in detail in the NPRM, at 45 CFR 1355.22, we implement these statutory requirements for safe and proper care, placement in appropriate settings, appropriate and quality services, and adequate preparation of placement providers by requiring that LGBTQI+ children must be offered placements with providers who are committed to establishing an environment that supports their LGBTQI+ status or identity, trained to provide for their needs, and will facilitate their access to appropriate services that support their health and well-being. We further implement these statutory requirements by requiring that LGBTQI+ children must be provided with supportive services, protected from retaliation on the basis of their LGBTQI+ identity or status, and have their privacy protected. 42 U.S.C. 675(1)(B) and (5). For transgender and gender non-conforming children, we implement the statutory requirement for appropriate placements by requiring that they be offered placements consistent with their gender identity. ACF came to these conclusions based on our careful and thorough review of the evidence regarding LGBTQI+ children in foster care, as described in section II of the preamble. Commenters cite a Federal district court decision, Shane v. Cnty. of San Diego, in support of their position. 677 F. Supp. 3d 1127, 1140 (S.D. Cal. 2023). However, that case does not address ACF’s statutory authority. Instead, it addresses the standard under the doctrine of qualified immunity for holding a state government officer liable for money damages based on an alleged deprivation of a Federal right. Such cases may proceed only where the Federal right at issue is ‘‘clearly established’’ in case law. In Shane, the district court concluded that the state E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 government officers could not be held liable for their alleged failure to include adequate mental health and substance abuse protocols in the child’s case plan because ‘‘the Court has not identified any case law that establishes that a case plan must contain this level of specificity.’’ Id. At 1140. (S.D. Cal. 2023). The court continued, ‘‘[n]either the Ninth Circuit nor other circuits have otherwise examined what specific treatments need to be included in a case plan to be compliant with the CWA [Adoption Assistance and Child Welfare Act of 1980].’’ Id. The district court’s conclusion that existing caselaw had not addressed ‘‘what specific treatments need to be included in a case plan’’ (Id.) to comply with IV–B and IV–E is not relevant to this rulemaking. The lack of caselaw addressing a specific question regarding interpretation of the IV–E statute does not in any way limit ACF’s ability to promulgate regulations interpreting and implementing the statute. With this rule, ACF specifies how the statutory ‘‘case plan’’ and ‘‘case review’’ requirements apply for LGBTQI+ foster children. Regarding commenters’ assertion that state family laws generally view the best interest of the child standard as flexible and fact-specific in determining appropriate placements, this rule does not prevent states or tribes from complying with their own state or tribal laws and policies regarding the best interest of the child in making placement decisions unless those laws or policies directly conflict with the requirements of the rule. ACF expects that title IV–E/IV–B agencies will continue to consider the many factors (such as kinship relationship, proximity to the child’s school, etc.) that go into determining the most appropriate placement for a child. ACF recognizes and values the important role child welfare agencies play in balancing multiple needs to identify the most appropriate placement for each foster child. This rule simply clarifies that, for LGBTQI+ foster children, the statutory case plan and case review requirements require access to a placement that is supportive of their LGBTQI+ status or identity. Arbitrary and Capricious Comment: Some state attorneys general commented that the proposed rule is arbitrary and capricious. They cite Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co. for the principle that ‘‘[a]gency analysis cannot ‘run[ ] counter to the evidence before the agency,’ must show a ‘rational connection between the facts found and the choice made,’ and needs to VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 ‘consider’ all ‘important aspect[s] of the problem’ the agency is addressing. 463 U.S. 29, 43 (1983) (citation omitted).’’ Commenters argue that the agency did not sufficiently consider ‘‘countervailing consequences’’ of its proposed approach, including the additional bureaucratic requirements it creates, the cost of complying with the mandates, the risk that foster care providers would be subject to retaliation claims, the likelihood of providers leaving the system as a result, the increase in likelihood that children would have to move multiple times while in foster care and that requiring urgent investigations of complaints about placements would take resources away from physical abuse investigations. Commenters also argued that the rule would endanger children through its requirement for youth to be offered a placement consistent with their gender identity. Commenters also argued that the cost estimate is unrealistically low. Commenters also argued that the rule does not offer sufficient evidence to show that LGBTQI+ youth are overrepresented in foster care or have worse outcomes or experiences while in care. Response: ACF has carefully considered all important aspects of this rule, including the possibility that it may have unintended negative consequences, consistent with the requirements of Motor Vehicle Mfrs., 463 U.S. 29. ACF has explained its consideration of the factors that commenters cite here in its discussion in the preamble in the discussion of regulatory provisions in Section III. ACF also considered alternatives like subregulatory guidance in the Regulatory Impact Analysis below. Based on its careful consideration of these factors, among many others discussed in the proposed rule and this final rule, ACF has concluded that the final rule is supported by the weight of the evidence before the agency specifically related to wellbeing of children being served in foster care. Spending Clause Comment: Some state attorneys general commented that they believe that the proposed rule violates the Spending Clause of the U.S. Constitution. They argue that caselaw requires that ‘‘if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.’’ Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). In their opinion, the IV–E and IV–B statutes do not authorize HHS to impose the requirements of this rule on state child welfare agencies. PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 34851 Response: The IV–E and IV–B statutes are explicit that states and tribes may only qualify for IV–E and IV–B funding if they meet the statutory state plan requirements, described at 42 U.S.C. 671 and 622, which include the requirements to: —Operate case review systems that assure that ‘‘each child has a case plan designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available and in close proximity to the parents’ home, consistent with the best interest and special needs of the child[.]’’ 42 U.S.C. 675(5), incorporated as a IV–E state plan requirement by 42 U.S.C. 671(a)(16) and as a IV–B state plan requirement by 42 U.S.C. 622(b)(8)(B). —Ensure that case plans include a plan for assuring that the child receives safe and proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents’ home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan. 42 U.S.C. 675(1)(B). —Include a certification that, before a child in foster care under the responsibility of the State is placed with prospective foster parents, the prospective foster parents will be prepared adequately with the appropriate knowledge and skills to provide for the needs of the child, that the preparation will be continued, as necessary, after the placement of the child, and that the preparation shall include knowledge and skills relating to the reasonable and prudent parent standard for the participation of the child in age or developmentallyappropriate activities, including knowledge and skills relating to the developmental stages of the cognitive, emotional, physical, and behavioral capacities of a child, and knowledge and skills relating to applying the standard to decisions such as whether to allow the child to engage in social, extracurricular, enrichment, cultural, and social activities. 42 U.S.C. 671(a)(24). —As a condition of each contract entered into by a child care institution to provide foster care, ensure the presence on-site of at least 1 official who, with respect to any child placed at the child care institution, is designated to be the caregiver who is authorized to apply the reasonable E:\FR\FM\30APR7.SGM 30APR7 34852 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations and prudent parent standard to decisions involving the participation of the child in age or developmentally-appropriate activities, and who is provided with training in how to use and apply the reasonable and prudent parent standard in the same manner as prospective foster parents are provided the training pursuant to 42 U.S.C. 671(a)(24). 42 U.S.C. 671(a)(10). Congress has expressly authorized the Secretary to ‘‘make and publish such rules and regulations . . . as may be necessary to the efficient administration of the functions with which [the Secretary] is charged under [the Social Security Act].’’ 42 U.S.C. 1302. This rule is necessary for the Secretary to fulfill his responsibility to ensure that child welfare agencies receiving IV–B and/or IV–E funding meet, for LGBTQI+ children in their care, the statutory mandates described above, including those to provide ‘‘safe and proper care’’ and ‘‘appropriate’’ placements. ACF notes that the Supreme Court has held Congress need not in statute ‘‘prospectively resolve every possible ambiguity concerning particular applications of the requirements of’’ a spending program. Bennett v. Kentucky Dep’t of Education, 470 U.S. 656, 669 (1985); see also Mayweather v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (‘‘Congress is not required to list every factual instance in which a state will fail to comply with a condition. Such specificity would prove too onerous, and perhaps, impossible. Congress must, however, make the existence of the condition itself—in exchange for the receipt of federal funds—explicitly obvious.’’) There is no question that the IV–B and IV–E statutes make explicitly obvious that states and tribes must comply with the IV–B and IV–E state plan requirements, including those related to case plans and case reviews, in order to qualify for Federal IV–B and IV–E funds. lotter on DSK11XQN23PROD with RULES7 Federalism Principles Comment: Some state attorneys general and some members of Congress commented that they believe the proposed rule violates federalism principles. They stated that ‘‘the U.S. Constitution leaves significant swaths of family, health, and safety regulation to the States’ exercise of their constitutionally reserved police powers’’ and argue that the proposed rule would shift the balance of power from states to the Federal Government. Commenters’ primary concern is that the rule may preempt state laws limiting VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 the availability of gender-affirming medical care for minors. Response: ACF disagrees that this rule violates federalism principles. As discussed in the response directly above, the rule implements Federal statutory terms regarding the care title IV–E/IV–B agencies must provide to LGBTQI+ foster children in order to qualify for the Federal IV–B and IV–E financial assistance programs. The rule does not preempt state laws regarding gender-affirming medical care for minors generally. Thus, where the rule requires states to ensure that LGBTQI+ children have access to age- or developmentally appropriate services that are supportive of their sexual orientation and gender identity or expression, including clinically appropriate mental and behavioral health supports, it requires access only to those services and supports that are lawful in the state. When a state accepts funds under the title IV–E/IV–B program, it agrees to provide safe and proper care to children within the system funded by that program. This rule merely elaborates on what is necessary to provide such care in the specific context of LGBTQI+ children in that program. It does not preempt or require any change to state laws regulating medical care generally. Nondelegation Doctrine Comment: Some state attorneys general commented that they believe that the proposed rule violates the nondelegation doctrine of the U.S. Constitution. They stated that ‘‘the nondelegation doctrine requires Congress to ‘lay down’ an ‘intelligible principle’ in an authorizing statute for the agency to follow. Mistretta v. United States, 488 U.S. 361, 372 (1989) (citation omitted). They then argued that the proposed rule’s expansive interpretation of HHS’s statutory authority ‘‘cannot be squared with this foundational constitutional check. In HHS’s view, the open-ended terms ‘safe and proper care’ and ‘best interests and special needs of the child’ are empty vessels waiting to enshrine any number of highly controversial requirements favored by federal agency heads.’’ Response: ACF disagrees that this rule violates the nondelegation doctrine. Congress does not violate the nondelegation doctrine merely because it legislates in broad terms and leaves a certain degree of discretion to an executive agency, so long as Congress sets forth—as commenters acknowledged—‘‘an intelligible principle’’ to which the agency must conform. The Supreme Court has routinely upheld delegations to the PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 Executive Branch ‘‘under standards phrased in sweeping terms.’’ See Loving v. U.S., 517 U.S. 748, 771 (1996). Congress may permissibly delegate authority to the Executive Branch to regulate in a manner that is necessary to adhere to policy objectives in a statute. See also Consumers’ Rsch. v. Fed. Commc’ns Comm’n (‘‘The intelligibleprinciple test has long recognized ‘that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.’ [Mistretta, 488 U.S.] at 372, 109 S.Ct. 647; Gundy, 139 S. Ct. at 2123 (explaining that the Court’s holdings recognize these considerations ‘time and again’).’’ 67 F.4th 773, 787 (6th Cir. 2023)\.)\. Congress here has charged the Secretary with ensuring that states and tribes operate case review systems in which ‘‘each [foster] child has a case plan designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available and in close proximity to the parents’ home, consistent with the best interest and special needs of the child.’’ 42 U.S.C. 675(5), 671(a)(16), 622(b)(8)(A)(ii). The case plan must also include a plan for assuring that each child receives ‘‘safe and proper care’’ 42 U.S.C. 675(1)(B). In addition, Congress has charged the Secretary with ‘‘promulgat[ing] regulations for the review of [state IV–B and IV–E] programs to determine whether such programs are in substantial conformity with—State plan requirements under such parts B and E.’’ 42 U.S.C. 1320a– 2a(a). Those regulations must, among other things, describe ‘‘the criteria to be used to measure conformity with such requirements and to determine whether there is a substantial failure to so conform.’’ 42 U.S.C. 1320a–2a(b)(2) These portions of the statute, and others described in the Legal Authority for the Final Rule section of this preamble, provide the ‘‘intelligible principle’’ necessary for ACF to promulgate these regulations. In a district court case, CompRehab Wellness Grp., Inc. v. Sebelius, No. 11– 23377–CIV, 2013 WL 1827675 (S.D. Fla. Apr. 30, 2013), the court upheld against a nondelegation challenge a regulation promulgated pursuant to the Social Security Act’s grant of rulemaking authority to the Secretary, which authorizes the Secretary to ‘‘make and publish such rules and regulations . . . as may be necessary to the efficient administration of the functions with which [the Secretary] is charged under [the Social Security Act].’’ 42 U.S.C. E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 1302. In finding the Social Security Act’s grant of rulemaking authority to provide the necessary ‘‘intelligible principle,’’ the court stated that ‘‘Essentially, what [the plaintiff] seeks is the invalidation of a statute granting authority to a named agency to regulate an identified federal program using statutory language well within the bounds of what has already been deemed constitutional.’’ Id. at 6. Although Congress has delegated authority ‘‘from the beginning of the government,’’ Big Time Vapes, Inc. v. FDA, 963 F.3d 436, 442 (5th Cir. 2020) (quoting United States v. Grimaud, 220 U.S. 506, 517 (1911)), ‘‘[o]n only two occasions—both in 1935 as part of its resistance to New Deal legislation—has the Court found a violation of the nondelegation doctrine,’’ Allstates Refractory Contractors, LLC v. Su, 79 F.4th 755, 762 (6th Cir. 2023). One of those statutory provisions ‘‘provided literally no guidance for the exercise of discretion,’’ and the other ‘‘conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’ ’’ Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474 (2001) (citing Panama Refin. Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)). By contrast, in the almost 90 years since, the Supreme Court has consistently upheld ‘‘Congress’ ability to delegate power under broad standards,’’ Mistretta, 488 U.S. at 373, and ‘‘ha[s] ‘almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law,’ ’’ Am. Trucking, 531 U.S. at 474–75 (quoting Mistretta, 488 U.S. at 416 (Scalia, J., dissenting). Major Questions Doctrine Comment: Some state attorneys general commented that they believe that the proposed rule violates the major questions doctrine of the U.S. Constitution. Commenters argue that the proposed rule ‘‘raises controversial questions of vast ‘political significance,’ yet does not reflect the type of clear congressional authorization the majorquestions doctrine requires. West Virginia v. EPA, 142 S. Ct. 2587, 2613 (2022) (quoting FDA v. Brown & Williamson, 529 U.S. 120, 160 (2000)).’’ They specifically refer to the requirement in the proposed rule for children to be offered a placement consistent with their gender identity if they are being placed in child care institutions, arguing that ‘‘this mandate overrides state policies governing sex- VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 segregated childcare institutions, which heed the privacy and safety interests in maintaining sex-segregated spaces— particularly for children.’’ Response: ACF disagrees that this rule violates the major questions doctrine. This rule does not address matters of ‘‘exceptional economic and political significance,’’ which would be necessary for the major questions doctrine to apply. Courts have held the major questions doctrine to apply where a regulation imposes extremely large costs or has far-reaching effects on areas outside of the agency’s traditional regulatory domain. (See e.g., Biden v. Nebraska, 143 S. Ct. 2355, 2358 (2023), overturning the Department of Education’s rule that would ‘‘establish a student loan forgiveness program that will cancel about $430 billion in debt principal and affect nearly all borrowers,’’ and W. Virginia v. Env’t Prot. Agency, 597 U.S. 697, 724 (2022), overturning an EPA rule that would ‘‘empower[] it to substantially restructure the American energy market.’’) This rule has no such exceptional reach. It implements ACF’s core responsibility to promote the wellbeing of foster children in programs that receive Federal funding through requiring state and tribal compliance with titles IV–B and IV–E of the Social Security Act. Commenters do not point to any aspects of the rule which they believe are of ‘‘exceptional economic significance.’’ With regard to ‘‘exceptional political significance,’’ the only section they specifically point to is the requirement for child welfare agencies to place transgender and gender nonconforming youth consistent with their gender identity.44 That requirement is not of ‘‘exceptional political significance.’’ Rather, it simply clarifies, for LGBTQI+ children in foster care, the IV– E statutory requirements to place foster children in ‘‘a safe setting that is the . . . most appropriate setting available . . . consistent with the best interest and special needs of the child.’’ 42 U.S.C. 675(5). This is not a ‘‘transformative expansion in [ACF’s] regulatory authority,’’ but simply a clarification of how to apply a longstanding statutory requirement to a specific subset of children in foster care. See W. Virginia v. Env’t Prot. Agency, 597 U.S. 697, 724 (2022). The requirement to offer children a 44 Note that the proposed rule applied the requirement for transgender and gender nonconforming children to be offered placements consistent with their gender identity to congregate care placements, whereas the final rule makes the requirement applicable to all placements. PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 34853 placement that is consistent with their gender identity is based on ACF’s careful consideration of current research on best practices to promote the health and safety of such youth, as described in the Background of the preamble. This regulatory requirement does not preempt state or tribal laws regarding sex-segregated child care institutions. If a state law prohibits placement in sexsegregated institutions based on gender identity, then the title IV–E/IV–B agency should explore all other placement options in order to offer a foster child a placement consistent with their gender identity, while also meeting the child’s other particular needs. Fulton v. City of Philadelphia Comment: Many commenters stated that the proposed rule impermissibly attempts to bypass the ruling in Fulton v. City of Philadelphia, 593 U.S. 522 (2021), by placing obligations on states instead of directly placing them on providers. Commenters said that the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb et seq., and state-level RFRA laws cannot be circumvented merely by making states do the work of foster care provider. The commenter said that foster families of faith will be negatively affected by the proposed rule. Similarly, a group of commenters said that the rule attempts to bypass and shift responsibility for compliance with Fulton and will not survive a court challenge. Response: The proposed rule and this final rule do not circumvent RFRA or otherwise undermine or attempt to bypass the Supreme Court’s ruling in Fulton v. Philadelphia. Rather, the rule, as proposed and adopted, primarily imposes obligation on states and tribes because Titles IV–E and IV–B of the Social Security Act allocate funding to states and tribes to administer Child Welfare programs. Consequently, when obligations in this rule are imposed on states and tribes, that designation of responsibility is in keeping with the structure of the program. ACF does not believe that administration of this rule will cause states or tribes to undertake any measures that violate Fulton, the Constitution, or Federal laws that support and protect religious exercise and freedom of conscience such as RFRA, applicable Federal civil rights laws or HHS regulations including 45 CFR part 87 (‘‘Equal Treatment for Faith-Based Organizations’’). As explained in the preamble to the NPRM, a provider may submit a request for religious accommodation regarding any requirement of this rule to the state or tribe, which must promptly forward the E:\FR\FM\30APR7.SGM 30APR7 34854 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations request to ACF. We will then evaluate the request to determine whether an exemption is appropriate under the standards of the Constitution, RFRA, and any other applicable law. V. Implementation Timeframe We received comments expressing concerns that the provisions in the rule added a layer of bureaucracy and/or burden on child welfare agencies. ACF acknowledges that there will be additional costs placed on state and tribal title IV–E/IV–B agencies. Therefore, ACF is providing more than two fiscal years for state and tribal title IV–E/IV–B agencies to implement the provisions of this final rule on or before October 1, 2026. We added § 1355.22(l) accordingly. VI. Regulatory Impact Analysis lotter on DSK11XQN23PROD with RULES7 Executive Orders 12866, 13563 and 14094 Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 is supplemental to, and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866, emphasizing the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Section 3(f) of Executive Order 12866, as amended by Executive Order 14094, defines ‘‘a significant regulatory action’’ as an action that is likely to result in a rule that may: (1) have an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of the Office of Information and Regulatory Affairs (OIRA) for changes in gross domestic product), or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, territorial, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise legal or policy issues for which centralized review would meaningfully further the President’s priorities or the principles VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 set forth in the order. OIRA has determined that this rule does meet the criteria for a significant regulatory action under section 3(f) of Executive Order 12866. Thus, it was subject to Office of Management and Budget (OMB) review. Costs and Benefits The benefits of this final rule are that placing children in foster care with providers the agencies consider Designated Placements for LGBTQI+ children will reduce the negative experiences of such children by allowing them to have access to needed care and services and to be placed in nurturing placement settings with caregivers who have received appropriate training. Ensuring such placements may also reduce LGBTQI+ foster children’s high rates of negative health outcomes, homelessness, housing instability and food insecurity. This rule promotes a supportive environment for LGBTQI+ children in foster care. ACF acknowledges that there will be a cost to implement changes made by this rule as we anticipate that a majority of states and tribes would need to expand their efforts to recruit and identify providers and foster families that the state or tribe could identify as Designated Placements for LGBTQI+ children. This cost would vary depending on an agency’s available resources to implement the rule. Alternatives Considered As an alternative to this final rule, ACF considered providing subregulatory guidance requiring agencies to implement the provisions of the final rule for LGBTQI+. However, this alternative was rejected because it would not have the force of law and thus could not effectively ensure that LGBTQI+ children and youth in foster care receive Designated Placements and services. ACF has already provided extensive resources and sub-regulatory guidance to agencies about improving the health and wellbeing of LGBTQI+ children in foster care, but those resources alone have not been sufficient to ensure that LGBTQI+ youth are protected from mistreatment in foster care. Regulatory Flexibility Analysis The Secretary certifies, under 5 U.S.C. 605(b), as enacted by the Regulatory Flexibility Act (Pub. L. 96–354), that this rule will not result in a significant impact on a substantial number of small entities. This rule does not affect small entities because it is applicable only to state and tribal title IV–E agencies, and those entities are not considered to be PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 small entities for purposes of the Regulatory Flexibility Act. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act (Pub. L. 104–4) requires agencies to prepare an assessment of anticipated costs and benefits before finalizing any rule that may result in an annual expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation). In 2023, that threshold is approximately $183 million. This rule does not contain mandates that will impose spending costs on state, local, or tribal governments in the aggregate, or on the private sector, in excess of the threshold. 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). OMB’s Office of Information and Regulatory Affairs has determined that this final rule does not meet the criteria set forth in 5 U.S.C. 804(2). Assessment of Federal Regulations and Policies on Families Section 654 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999 (Pub. L. 105–277) requires Federal agencies to determine whether a policy or regulation may affect family wellbeing. If the agency’s determination is affirmative, then the agency must prepare an impact assessment addressing seven criteria specified in the law. This rule will not have an impact on family well-being as defined in the law. Executive Order 13132 on Federalism Executive Order (E.O.) 13132 requires that Federal agencies, ‘‘to the extent practicable and permitted by law,’’ consult with state and local government officials in the development of regulatory policies with federalism E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations implications. Consistent with E.O. 13132 and Guidance for Implementing E.O. 13132 issued on October 28, 1999, for rules with federalism implications, the Department must include in ‘‘a separately identified portion of the preamble to the regulation’’ a ‘‘federalism summary impact statement’’ (secs. 6(b)(2)(B) & (c)(2)). In the NPRM, ACF stated the proposed rule would not have substantial direct impact on the relationship between the Federal Government and the states, or on the distribution of power and responsibilities among the various levels of government. However, we anticipated that the proposed rule would have a substantial direct impact on the cost that title IV–E agencies would incur to implement administrative procedures and recruit and train their workforce and providers. Accordingly, ACF included a federalism summary impact statement in the preamble to the NPRM. In that statement, ACF wrote ‘‘To inform the final rule, ACF will seek to further consult with state and local governments and request that such governments provide comments on provisions in the proposed rule and on whether state and local governments are likely to incur additional substantial costs.’’ The Department’s federalism summary impact statement for the final rule is as follows—‘‘A description of the extent of the agency’s prior consultation with state and local officials’’— The public comment period for the NPRM was open for 60 days and closed on November 27, 2023. During this time, we solicited comments via regulations.gov and email. During this comment period, we held two informational calls on October 11 and 30, 2023, for states, Indian tribes, and the public. During these calls, we provided an overview of the proposed provisions and where to submit comments. ‘‘A summary of the nature of their concerns and the agency’s position supporting the need to issue the regulation’’— As we discussed in the preamble to this final rule, some government entity commenters expressed support and appreciation for the efforts of HHS to establish protections for LGBTQI+ youth in foster care. Other government entity commenters opposed the rule and stated generally a belief that the NPRM creates a separate and distinct process for LGBTQI+ youth that violates privacy, and raised concerns related to religious beliefs of providers. Government entity critics of the NPRM also argued that it creates a ‘‘cumbersome fix’’ for a VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 problem that lacks clear definition while states are currently having issues finding enough providers for all children in foster care. They also argued that the NPRM’s provisions would disincentivize families from serving as foster parent providers and would ‘‘drive individuals and organizations of faith away.’’ They also expressed concerns that most congregate care providers are not currently equipped to meet the provisions around placing children according to their gender identity. Finally, there were objections to what they saw as unfunded burdens on the agencies to develop new trainings, modify licensing and placement rules, and revisions to case management systems to track placements, notifications, and other requirements in the NPRM. The state AG letters raised legal concerns that the NPRM violates various statutory and constitutional requirements; these concerns are addressed in section IV of this preamble. ‘‘A statement of the extent to which the concerns of state and local officials have been met’’ (secs. 6(b)(2)(B) and 6(c)(2))— As we discussed in the preamble to this final rule, safe and appropriate placements are a requirement for all children in foster care. This final rule simply clarifies that requirement for LGBTQI+ children and preserves substantial state discretion consistent with that requirement. Paperwork Reduction Act This final rule does not contain additional information collection requirements (ICRs) subject to review by the OMB under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501–3520. Information collection requirements for case plans required under title IV–E and IV–B are currently authorized under OMB number #0970– 0428. This rule does not require changes to the existing information collection as there will be minimal burden associated with the proposed case plan requirements. Any additional costs would be minimal because agencies are already required to provide case review protections to children in foster care, and the rule provides more specificity for an LGBTQI+ child. While agencies will need to develop policies to comply with some of the provisions in the rule, the casework to provide safe placements, consult with children, and notify them of the procedures for reporting concerns or requests for placement changes are part of the agency’s ongoing work with a child in foster care. PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 34855 Information collection for the CFSR is currently authorized under OMB # is 0970–0214 and no changes are needed to that collection as this rule does not significantly change or add burden to the requirements. The CFSR already includes the review of case plan requirements for safe and appropriate placements for all children in foster care. Annualized Cost to the Federal Government ACF estimated that the proposed regulatory changes would cost the Federal Government $10,827,381 over a three fiscal year (2027–2029) period. ACF estimated that the combined total Federal and agency costs over three fiscal years would be $45,743,070. The estimate for this final rule was derived using fiscal year (FY) 2021 data from the Adoption and Foster Care Analysis and Reporting System (AFCARS) on children in foster care, FY 2022 claiming data from the Form CB– 496 ‘‘Title IV–E Programs Quarterly Financial Report (Foster Care, Adoption Assistance, Guardianship Assistance, Prevention Services and Kinship Navigator Programs),’’ National Child Abuse and Neglect Data System (NCANDS) child protection caseworker data collected between FY 2003 and FY 2014, state surveys, and the U.S. Department of Labor Bureau of Labor Statistics (BLS). The portions of this final rule’s requirements determined to have an identifiable impact on title IV–E/IV–B agency costs were as follows: • To comply with the requirement that all LGBTQI+ children in foster care have access to a designated placement, agencies will likely need to increase the recruitment of providers who are qualified to provide safe and appropriate affirming care. • Training agency caseworkers and supervisors on the procedural requirements in the final rule and on how to adequately serve LGBTQI+ foster children, and training placement providers seeking to become designated as a designated placement provider on how to meet the needs of LGBTQI+ children in foster care, as required in the proposal. Assumptions: ACF made several assumptions when calculating administrative and training costs for this rule. ACF assumes that quantifiable incremental costs with respect to the above activities will largely be incurred on behalf of children in foster care who are age 14 and older. ACF expects the population of children under age 14 who meet the proposed requirements of E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 34856 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations paragraph (b)(2)(i)(A) or (B) to be relatively small, and therefore not likely to have a significant impact on cost. We are, however, accounting for the cost to recruit and train sufficient Designated Placement providers to serve all children in need of such a placement regardless of age. This is accomplished by calculating recruitment and training costs using the maximum expected level of designated placement needs for children ages 4 and older. We assume that states and tribes will not be able to use title IV–B funding to implement this final rule. Children in foster care who are not title IV–E eligible are also subject to the proposed requirements based on the proposed rule’s applicability to title IV–E and IV– B agencies. Title IV–B funding is available for 75 percent Federal financial participation (FFP) for recruitment and training of placement providers (section 424(a) of the Social Security Act). However, those funds are limited to an annual allotment provided to each title IV–B agency. Therefore, we assume agencies will likely need to cover 100 percent of the Designated Placement provision costs on behalf of non-title IV–E eligible children in foster care. ACF assumes an overall annual one percent caseload growth rate in the foster care population based on our current title IV–E budgetary projections. Since this final rule focuses on older children in foster care, we increased this growth rate slightly (to an average of 1.4 percent annually) to consider an expected further growth in the age 18 and older foster care population, as more states opt to extend foster care through age 20. This final rule will become effective at the beginning of FY 2027 and thus will apply to the entire population of children in foster care who are age 14 and older in that FY. ACF assumes that although implementation can begin earlier, the majority of incremental costs will be for the activities occurring in FY 2027. We expect costs in FYs 2028 and 2029 to be about half of those for FY 2027 since the required activities will affect primarily those children in care who are turning age 14 in the FY, or who are newly entering care at age 14 and older. It is possible that more of the costs will be concentrated in FY 2028, rather than FY 2029, if implementation occurs at a more accelerated pace. After the third year of implementation, we anticipate that incremental costs will largely be eliminated as available Designated Placement providers are recruited and the policies, procedures, and training requirements are implemented. VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 Federal cost estimate for implementation of Designated Placements: The table below displays the individual calculations by line. All entries in the table 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 in foster care (FC). Line 1 of the table below displays the actual number of children in FC at the beginning of FY 2022 (baseline), which was 391,098. Line 1 also displays estimates of the annual number of children in FC in the subsequent FYs 2027, 2028, and 2029. Line 2. National number of children in FC age 14 and older. Line 2 of the table below displays the actual number of children in FC who were age 14 and older at the beginning of FY 2022 (baseline) which was 92,852. We also provide estimates of the number of children in FC age 14 and older in the following subsequent FYs 2027, 2028, and 2029. In 2029 the caseload is estimated at 105,423. Line 3. National average monthly number of children in title IV–E FC age 14 and older. Line 3 of the table below displays the actual number of title IV– E eligible children in FC age 14 or older at the beginning of FY 2022 (baseline), which was 36,817. This number is calculated by applying the percentage of all children in FC (title IV–E and nonIV–E eligible) that are age 14 or older to the reported count of title IV–E eligible children receiving FC administrative cost services. For example, in FY 2022 the title IV–E FC caseload for administrative costs was 155,075 and the percentage of all children in FC who were age 14 or older was 23.74 percent. Therefore, the calculated count of title IV–E eligible children in FC age 12 and older is 36,817 (155,075 × 23.74%). We also provide estimates of the number of children in FC age 14 and older in the following subsequent years: FYs 2027, 2028, and 2029. Line 4. National number of children to be notified of Designated Placement requirements. Line 4 of the table below provides an estimate of the number of children in FC who must be notified of the Designated Placement provisions in proposed § 1355.22(a)(2)(i). For the first year of implementation (FY 2027) this number is the same as the Line 2 number (national number of children in foster care age 14 and older) since all of these children are required to be so notified. For FYs 2028 and 2029, we multiplied the national number of children in FC age 14 and older (Line 2) by the proportion of this population PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 that entered care in that FY based on baseline year AFCARS data showing 40.64 percent. This step avoids counting children that are likely to have already received the notification in a prior FY. For example, in FY 2029 the national number of children that must be notified of Designated Placement requirements is 42,846 (105,423 (Line 2) × 40.64% (Line 4) = 42,846). Line 5. Percentage of national foster care placements for children needing Designated Placements. Line 5 of the table below displays the estimated percentage of national foster care Designated Placements needed for children who identify as LGBTQI+. For each FY, we divided the number of children in foster care ages 14 and older (Line 4) by the expected total annual number of children entering foster care. Data available through surveys shows that about 30 percent of older children in foster care identify as LGBTQI+. An analysis of data collected from 2013– 2015 in the California Health Kids Survey found that 30.4 percent of foster youth aged 10–18 identify as LGBTQ+.45 Similarly, a 2021 study of foster children ages 12 through 21 in Cuyahoga County, Ohio, found that 32 percent identified as LGBTQI+.46 For the purposes of this cost estimate, ACF’s estimate of children age 14 and over in foster care who identify as LGBTQI+ is 30 percent. For example, in FY 2027 on Line 4, the national number of children to be notified of Designated Placement provisions is 103,423 and the base year total foster care entries is 206,812. ACF estimated 30 percent of older children in foster care identify as LGBTQI+. Therefore, Line 5, the percentage of national foster care placements for LGBTQI+ children needing designated placements, is 15.0 percent ((103,423 × 30 percent) ÷ 206,812). This estimate is purposefully high to account for some children under age 14 who may also need such designated placements. Line 6. Total incremental costs (Federal and non-Federal) for recruiting Designated Placements. Line 6 of the table below displays the estimated total cost of recruiting placement providers to meet the proposed requirements for 45 Baams, L., Russell, S.T, and Wilson, B.D.M. LGBTQ Youth in Unstable Housing and Foster Care, American Academy of Pediatrics, Volume 143, Issue 3, March 2019, https://doi.org/10.1542/ peds.2017-4211. 46 Institute for Innovation and Implementation at University of Maryland’s School of Social Work and the National Quality Improvement Center on Tailored Services, Placement Stability, and Permanency for LBTQ2S Children and Youth in Foster Care (2021). Cuyahoga Youth Count: A Report on LBTQ+ Youth Experience in Foster Care, https://theinstitute.umaryland.edu/media/ssw/ institute/Cuyahoga-Youth-Count.6.8.1.pdf. E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations Designated Placement providers for LGBTQI+ children in the foster care system. This estimate for each FY is based on data collected from ten title IV–E/IV–B agencies across the Nation with respect to their current annual budgets for foster care recruitment activities. We used this data to calculate a nationwide total estimated annual foster care recruitment cost of $185,998,176 based on an extrapolation of the provided data using FY 2022 foster care caseload information. This figure was adjusted for expected inflation (+2.0 percent per FY) thru FY 2027 resulting in an amount of $204,597,993 and was then multiplied by the calculated portion of the FC caseload ages 14 and older, and then further reduced to 30 percent of that number (estimated LGBTQI+ identification percentage) to reflect the maximum anticipated need for new Designated Placements in each FY. The resulting amount was then reduced by another 50 percent to reflect the likelihood that a significant portion of the Designated Placement recruitment budget would be obtained by refocusing the existing budget for recruitment costs towards Designated Placements. This would promote the agency’s ability to comply with the proposed requirement in paragraph (a)(1), given agency recruitment budgets may be limited. For example, in FY 2027 we estimate that up to 30 percent of notified children (Line 4) as a percentage of all newly placed children in that FY may require the availability of a placement that is designated by the agencies as a Designated Placement. This percentage for FY 2027 of 15.0 percent (31,027 ÷ 206,812) is then multiplied by the national estimated foster care recruitment cost budget $204,597,993) resulting in a total of $30,694,652. This figure is then reduced by 50 percent to reflect the anticipated incremental cost for Designated Placement provider recruitment efforts of $15,347,326. This estimate is purposefully high to account for some children under age 14 who may also need Designated Placements. The total cost for FYs 2025, 2026, and 2027 is $28,002,901. Line 7. Total costs (Federal and nonFederal) for Designated Placement training (caseworkers, supervisors & providers). Line 7 of the table below provides the estimated total cost of training required for Designated Placements. This estimate for each FY is derived by first identifying the baseline cost of providing a model sexual orientation, gender identity or expression training curriculum developed by the National Quality Improvement Center on Tailored VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 Services, Placement Stability, and Permanency for LGBTQ2S Children and Youth in Foster Care (QIC–LGBTQ2S); a project funded by ACF. This curriculum provides for a two-hour training that can be conducted in-person or remotely for an average group of 30 participants. The identified average cost of delivering this training is $300 plus overhead of 100 percent bringing the total cost to $600 or $20 per participant. Our estimate increases this figure by three percent per year to account for inflation. We estimate the number of caseworker and casework supervisor (staff) in FY 2027 to be 100 percent of individuals in these positions. National foster care caseworker staffing level data was obtained from reports provided by six state title IV–E/IV–B agencies representing about 16 percent of the national FY 2021 foster care population. This data was then extrapolated using FC caseloads to obtain an estimate of the total number of national FC caseworkers in FY 2021. An estimated annual caseworker growth rate of +2.2 percent was also computed using national NCANDS child protection caseworker data collected between FY 2003 and FY 2014. This data results in an estimated FY 2027 national total of 39,929 FC caseworkers. The casework supervisor count uses the generally applied ratio of one supervisor for five workers resulting in an FY 2027 number of 7,986. The provider trainee population is calculated by using the count of children to be notified of Designated Placement provisions (Line 4) multiplied by 30 percent (maximum expected portion of these children identifying as LGBTQI+) and is then further reduced by the expectation that each provider will, on average, serve 1.5 children. This results in an FY 2027 Designated Placement provider trainee population of 23,270. The expected number of trainees for subsequent FYs is lower based on the expected number of newly placed children in each of these FYs. Other costs included in the training estimate are staff participation costs and travel and per diem for in-person trainings conducted outside of the local area. Staff participation costs include salary and overhead for each worker spent in the training (two hours). Caseworker title average salary data (as of May 2022) sourced from the U.S. Department of Labor; Bureau of Labor Statistics (BLS) was used in the calculation along with an estimated overhead cost rate of 100 percent. This results in an FY 2022 (baseline) hourly cost (salary + overhead) of $55.98. The cost for two hours of activity is thus $111.97 per participant. A cost-of-living PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 34857 adjustment of +2 percent per year is than added for each subsequent year. Travel and per diem costs are estimated in FY 2022 (base year) as $100 per participant at in-person trainings which are expected to constitute 50 percent of total trainings. An inflation factor of three percent per year is applied to these costs for later FYs. For example, in FY 2027 we expect a total of 71,185 trainees (caseworkers, supervisors & foster care providers). Therefore, the 50 percent of that total expected to have travel & per diem costs is 35,592 trainees. At an average cost of $115 per participant the total cost in this category is $4,093,114. The total FY 2027 estimate for Designated Placement training is $11,064,847. This amount lowers to $3,406,624 for FY 2029. The total training cost for FYs 2027, 2028, and 2029 is $17,740,168. Line 8. Total costs (Federal and nonFederal) for all Designated Placement activities. Line 8 displays the annual estimated total (Federal + non-Federal) costs for all recruitment and training activities for LGBTQI+ children. This is the sum of lines 6 and 7. We estimate these total costs in FY 2027 as $26,412,173 and the total cost for FYs 2027, 2028, and 2029 is $45,743,070. Line 9. Total title IV–E FFP for all Designated Placement activity costs. Line 9 displays the annual estimated total title IV–E Federal share of costs for all placement activities for LGBTQI+ children. This is calculated by applying the applicable match rate and the estimated title IV–E participation (eligibility) rate that is generally used to allocate foster care administrative costs. Title IV–E agencies may claim FFP for 50 percent of the administrative costs that agencies incur to provide for activities performed on behalf of title IV–E eligible children in foster care, recruitment of foster homes and childcare institutions (CCIs), and certain other administrative activities identified in 45 CFR 1356.60. The agency must pay the remaining 50 percent nonFederal share of title IV–E administrative costs with state or tribal funds. Title IV–E agencies may claim reimbursement for 75 percent of allowable training costs to provide for activities performed on behalf of title IV–E eligible children in foster care including training of agency caseworkers and supervisors (including staff participation costs) and training of foster care providers providing care to title IV–E eligible children. The title IV– E agency must pay the remaining 25 percent non-Federal share of title IV–E training costs with state or tribal funds. For example, the FY 2027 amount is E:\FR\FM\30APR7.SGM 30APR7 34858 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations calculated by using the FY 2027 estimated title IV–E foster care participation rate of 39.65 percent along with the applicable FFP rates of 50 percent for administrative costs and 75 percent for training costs. We estimate these total title IV–E FFP costs beginning in FY 2027 as $6,333,200 and the total cost for FYs 2027, 2028, and 2029 is $10,827,381. Line 10. Total title IV–E non-Federal share for all Designated Placement activity costs. Line 10 displays the annual estimated total title IV–E nonFederal (state or tribe) share of costs for all Designated Placement activities for LGBTQI+ children. This is calculated by applying the applicable non-Federal share match rate and the estimated nonIV–E participation (eligibility) rate that is generally used to allocate foster care administrative costs. For example, the FY 2027 amount is calculated by using the FY 2027 estimated title IV–E foster care participation rate of 39.65 percent along with the applicable non-Federal share matching rates of 50 percent for administrative costs and 25 percent for training costs. We estimate these total title IV–E non-Federal share costs beginning in FY 2027 as $4,139,530 and the total cost for FYs 2027, 2028, and 2029 is $7,310,288. Line 11. Total title IV–B non-Federal share for all Designated Placement activity costs. Line 11 displays the annual estimated total title IV–B nonFederal (state or tribe) share of costs for all Designated Placement activities. This is calculated by deducting such placement activity costs that are allocable to title IV–E from such total costs. Although costs allocated to title IV–B are subject to Federal matching at the 75 percent rate, as explained previously we assume that none of these 2022 (baseline) Year lotter on DSK11XQN23PROD with RULES7 1. National number of children in foster care (FC) ............................................... 2. National number of children in FC age 14 and older ....................................... 3. National average monthly number of children in title IV–E FC age 14 and older ................................................................................................................... 4. National number of children to be notified of Designated Placement provisions .................................................................................................................. 5. Percentage of national FC placements for children needing Designated Placements ........................................................................................................ 6. Total incremental costs (Federal and non-Federal) for Designated Placement recruitment ......................................................................................................... 7. Total costs (Federal and non-Federal) for Designated Placement training (caseworkers, supervisors & providers) ............................................................ 8. Total Federal and non-Federal costs for all Designated Placement activities (Lines 6+7) ........................................................................................................ 9. Total title IV–E FFP for all Designated Placement Activity costs .................... 10. Total title IV–E non-Federal share for Designated Placement activity costs 11. Total title IV–B non-Federal share for Designated Placement activity costs 12. Total titles IV–E and IV–B non-Federal share for placement Designated activity costs (Lines 10+11) .................................................................................. ACF received several comments on the cost estimate. Comment: One commenter expressed concerns that the fiscal impact calculations of this regulation are based on estimates of the number of LGBTQI+ children related to surveys conducted (one completed in California in 2014 and one completed in Ohio in 2021) rather than AFCARs data. Response: AFCARS does not collect information on LGBTQI+ status or identity. Therefore, ACF believes that these surveys are the best available data to estimate the potential population to be served through this regulatory change. Comment: Commenters expressed that the proposed rule underestimated the recruitment costs, and the cost estimate is unrealistic. Response: As noted in the NPRM, the ACF estimate covers the maximum potential population for which foster home recruitment will be needed. It is VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 2027 Frm 00042 Fmt 4701 2028 2029 Three-year total 391,098 92,852 415,095 103,423 418,895 104,418 422,730 105,423 ........................ ........................ 36,817 41,008 41,403 41,801 ........................ N/A 103,423 42,438 42,846 ........................ N/A 15.0% 6.2% 6.2% ........................ N/A $15,347,326 $6,297,488 $6,358,087 28,002,901 N/A $11,064,847 $3,268,697 $3,406,624 17,740,168 N/A N/A N/A N/A $26,412,173 $6,333,200 $4,139,530 $15,939,443 $9,566,185 $2,220,573 $1,572,534 $5,773,079 $9,764,712 $2,273,609 $1,598,224 $5,892,879 45,743,070 10,827,381 7,310,288 27,605,401 N/A $20,078,973 $7,345,613 $7,491,103 34,915,689 also expected that as policies and procedures are modified to incorporate Designated Placements into existing recruitment activities, the incremental costs will decrease. We thus believe the estimate cost for recruitment to be reasonable. Comment: One commenter stated that the basis for the cost estimate is not clear. Response: ACF is basing its estimate that incremental costs of recruitment will no longer be in effect after FY 2027 on an expectation that recruiting activities for Designated Placements will be incorporated into existing recruitment contracts and services as well as the development of a significant pool of existing foster family homes that are trained to serve as Designated Placements. Comment: One commenter indicated that their experience with ’estimates’ of the cost of new proposals is alarmingly PO 00000 costs will be federally reimbursed through title IV–B due to the limited annual allotments for the title IV–B program. Therefore, agencies may need to fund the cost entirely from state or tribal funds or other sources of funding. We estimate these total title IV–B nonFederal share costs beginning in FY 2027 as $15,939,443 and the total cost for FYs 2027, 2028, and 2029 is $27,605,401. Line 12. Total title IV–E and IV–B non-Federal share for all Designated Placement activity costs. Line 12 displays the annual estimated total title IV–E and IV–B non-Federal share of costs for all Designated Placement activities. This is the sum of amounts on Lines 10 and 11. We estimate these total title IV–E and IV–B non-Federal share costs beginning in FY 2027 as $20,078,973 and the total cost for FYs 2027, 2028, and 2029 is $34,915,689. Sfmt 4700 low. They always cost more than originally estimated. Response: ACF understands the concern raised and has made a careful assessment of the likely costs based on information currently available. Comment: One commenter stated the NPRM failed to adequately consider the costs state agencies will incur to comply with mandates. For example, state agencies will need to develop protocols and systems for implementing the rule’s new oral and written notification regimes. State agencies also face significant costs to enforce and monitor the retaliation regime, including the costs of preparing and providing materials to all foster care providers. Response: ACF determined that incremental costs for the Designated Placement regulatory changes were most likely to be concentrated in recruitment and training costs. We recognize that some other incremental costs may E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations occur, but do not expect them to be significant. lotter on DSK11XQN23PROD with RULES7 VII. 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. Consultation and Coordination With Indian Tribal Governments, 65 FR 67249. 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. Some title IV–E/IV–B tribal agencies may need to amend their practices to ensure that a placement is available for and provided to an LGBTQI+ or TwoSpirit child in foster care that supports the child’s identity. However, we do not expect the costs to be substantial and have received no comments indicating so. Tribal title IV–E agencies may claim FFP for title IV–E foster care administrative and training costs for a portion of the administrative costs incurred. ACF is committed to consulting with Indian tribes and tribal leadership to the extent practicable and permitted by law. ACF engaged in consultation with Indian tribes and their leadership on the September 2023 NPRM as described below. Description of Consultation On September 29, 2023, ACF issued a letter to tribal leaders announcing the date, purpose, virtual location, and registration information for tribal consultation and shared it widely through a variety of peer groups and email list-serves. Tribal Consultation was held via a Zoom teleconference call on October 30, 2023. A report of the tribal consultation may be found on the CB website at: https://www.acf.hhs.gov/ cb/report/tribal-consultation-nprmslegal-foster-care. In summary, the VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 consultation participants expressed the importance of recognizing LGBTQI+ resources that are specific to each tribe because of differing traditions. A participant made the point that that there could be a potential conflict between placing a child in accordance with the ICWA placement preferences and the NPRM provisions on safe and appropriate placements. We agree that there could be numerous factors in Federal law and the final rule that impact an agency’s decision on a caseby-case basis, which they will need to take into account in Federal law and the final rule. Participants requested clarification on what the law requires when there is a conflict between what a child is expressing and what the parents want for the child. This issue is addressed earlier in the preamble. Several participants commented that ACF can support tribal agencies by providing flexible funding to develop resources for LGBTQI+ youth. While flexible funding is not available at this time to implement the final rule, as noted in the NPRM, title IV–E administrative costs are available to claim recruitment and training costs. List of Subjects in 45 CFR Part 1355 Adoption and foster care, Child welfare, Grant programs—social programs. (Catalog of Federal Domestic Assistance Program Number 93.658, Foster Care Maintenance; 93.659, Adoption Assistance; 93.645, Child Welfare Services—State Grants). Approved: April 23, 2024. Xavier Becerra, Secretary, Department of Health and Human Services. For the reasons set forth in the preamble, ACF amends 45 CFR part 1355 as follows: PART 1355—GENERAL 1. The authority citation for part 1355 continues to read as follows: ■ Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq.; 42 U.S.C. 1302. ■ 2. Add § 1355.22 to read as follows: § 1355.22 Designated Placement requirements under titles IV–E and IV–B for LGBTQI+ children. LGBTQI+ children (including children with lesbian, gay, bisexual, transgender, queer, or questioning, and intersex status or identity) shall be placed and receive services in accordance with the following requirements: (a) Protections generally applicable. As part of meeting the requirement to PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 34859 provide a safe and appropriate placement for all children in foster care, the title IV–E/IV–B agency must ensure that all placements, including those for LGBTQI+ children, are free from harassment, mistreatment, or abuse. (b) Designated Placements and services for LGBTQI+ children. The title IV–E/IV–B agency must meet the following requirements for each LGBTQI+ child in foster care: (1) Designated Placements. The title IV–E/IV–B agency must ensure there is a Designated Placement available for all LGBTQI+ children in foster care who request or would benefit from such a placement. Nothing in this section requires any provider to become or serve as a Designated Placement. As used in this section, for a placement to be specifically designated for an LGBTQI+ child, the provider must meet the protections generally applicable as defined at paragraph (a) of this section and: (i) Commit to establish an environment that supports the child’s LGBTQI+ status or identity; (ii) Be trained with the appropriate knowledge and skills to provide for the needs of the child related to the child’s self-identified sexual orientation, gender identity, and gender expression. The training must reflect evidence, studies, and research about the impacts of rejection, discrimination, and stigma on the safety and wellbeing of LGBTQI+ children, and provide information for providers about professional standards and recommended practices that promote the safety and wellbeing of LGBTQI+ children; and (iii) Facilitate the child’s access to age- or developmentally appropriate resources, services, and activities that support their health and well-being as described in paragraph (e) of this section. (2) Process for notification of and request for Designated Placements. The IV–E/IV–B agency must implement a process by which an LGBTQI+ child may request a Designated Placement as described in paragraph (b)(1) of this section or request that their current placement be offered services to become a Designated Placement. The title IV–E/ IV–B agency’s process for considering such a request must provide the child with an opportunity to express their needs and concerns. The process must safeguard the privacy and confidentiality of the child, consistent with section 471(a)(8) of the Act and 45 CFR 205.50, and must include the following components: (i) Notice of the availability of Designated Placements and the ability to request that services be offered to their E:\FR\FM\30APR7.SGM 30APR7 lotter on DSK11XQN23PROD with RULES7 34860 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations current placement must be provided to, at minimum: (A) All children age 14 and over; and (B) Children under age 14 who: (1) Have been removed from their home due, in whole or part, to familial conflict about their sexual orientation, gender identity, gender expression or sex characteristics; or (2) Have disclosed their LGBTQI+ status or identity or whose LGBTQI+ status or identity is otherwise known to the agency; (ii) The notice must be provided in an age- or developmentally appropriate manner, both verbally and in writing, and must inform the child of how they may request a Designated Placement or services for their current placement and the process the title IV–E/IV–B agency will use in responding to their request; and (iii) The notice must inform the child of the nonretaliation protections described at paragraph (d) of this section and describe the process by which a child may report a concern about retaliation. (3) Placement and services decisions and changes. When making placement and service decisions related to an LGBTQI+ child, the title IV–E/IV–B agency shall give substantial weight to the child’s expressed concerns or requests when determining the child’s best interests. To promote placement stability, when an LGBTQI+ child requests a Designated Placement and before initiating any placement changes, the title IV–E/IV–B agency must consider whether additional services and training would allow the current provider to meet the conditions for a Designated Placement. If so, and if the current provider is willing to meet the conditions for a Designated Placement, the IV–E/IV–B agency must use the case review system to regularly review the provider’s progress towards meeting the conditions of such a designation. (c) Process for reporting concerns about placements and concerns about retaliation. The title IV–E/IV–B agency must implement a process for LGBTQI+ children to report concerns about a placement that fails to meet the applicable requirements of this section, and to report concerns about retaliation as described in paragraph (d) of this section. The process must safeguard the privacy and confidentiality of the child, consistent with section 471(a)(8) of the Act and 45 CFR 205.50. The title IV–E/ IV–B agency must respond promptly to an LGBTQI+ child’s reported concern, consistent with the agency’s timeframes for investigating child abuse and neglect reports depending on the nature of the child’s report. VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 (d) Retaliation prohibited. (1) The title IV–E/IV–B agency must have a procedure to ensure that neither the title IV–E/IV–B agency, nor any provider, nor any entity or person acting on behalf of the agency or a provider retaliates against an LGBTQI+ child in foster care based on the child’s actual or perceived LGBTQI+ status or identity, any disclosure of that status or identity by the child or a third party, or the child’s request or report related to the requirements for placements or services under this part. (2) Conduct by the title IV–E/IV–B agency, provider, or any entity or person acting on behalf of the agency or a provider that will be considered retaliation includes, but is not limited to: (i) Harassment, mistreatment, or abuse as described in paragraph (a) of this section. (ii) Attempts to undermine, suppress, change, or stigmatize a child’s sexual orientation or gender identity or expression through ‘‘conversion therapy.’’ (iii) Unwarranted placement changes, including unwarranted placements in congregate care facilities, or restricting an LGBTQI+ child’s access to LGBTQI+ peers, siblings, family members, or ageor developmentally appropriate materials and community resources. (iv) Disclosing the child’s LGBTQI+ status or identity in ways that cause harm or risk the privacy of the child or that infringe on any privacy rights of the child. (v) Using information about the child’s LGBTQI+ status or identity to initiate or sustain a child protection investigation or disclosing information about the child’s LGBTQI+ status or identity to law enforcement in any manner not permitted by law. (vi) Taking action against current or potential caregivers (including foster parents, pre-adoptive parents, adoptive parents, kin caregivers and birth families) because they support or have supported a child’s LGBTQI+ status or identity. (e) Access to supportive and age- or developmentally appropriate services. The title IV–E/IV–B agency must ensure that LGBTQI+ children have access to age- or developmentally appropriate services that are supportive of their sexual orientation and gender identity or expression, including clinically appropriate mental and behavioral health supports. (f) Placement of transgender and gender non-conforming children in foster care. When considering placing a child, the title IV–E/IV–B agency must offer the child a placement consistent PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 with their gender identity. The title IV– E/IV–B agency must also consult with the child to provide an opportunity to voice any concerns related to placement. (g) Compliance with privacy laws. The title IV–E/IV–B agency must comply with all applicable privacy laws, including section 471(a)(8) of the Act and 45 CFR 205.50, in all aspects of its implementation of this section. Information that reveals a child’s LGBTQI+ status or identity may only be disclosed in accordance with law and any such disclosure must be the minimum necessary to accomplish the legally-permitted purposes. (h) Training and notification requirements. In addition to meeting the requirements of paragraph (b)(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 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 nonretaliation provisions outlined in paragraph (d) of this section. (3) Ensure that all placement providers are informed of the procedural requirements to comply with this section, including the required nonretaliation provision outlined in paragraph (d) of this section. (i) Protections for religious freedom, conscience, and free speech. Insofar as the application of any requirement under this section would violate applicable Federal protections for religious freedom, conscience, and free speech, such application shall not be required. (j) No penalties for providers that do not seek to qualify as Designated Placements. Nothing in this section shall be construed to require or authorize a State or Tribe to penalize a provider in the titles IV–E or IV–B programs because the provider does not seek or is determined not to qualify as a Designated Placement under this section. (k) Severability. Any provision of this section held to be invalid or E:\FR\FM\30APR7.SGM 30APR7 Federal Register / Vol. 89, No. 84 / Tuesday, April 30, 2024 / Rules and Regulations lotter on DSK11XQN23PROD with RULES7 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. (l) Implementation. Title IV–E/IV–B agencies must follow the requirements of this section beginning on October 1, 2026. (m) No effect on more protective laws or policies. Nothing in this section shall limit any State, Tribe, or local VerDate Sep<11>2014 20:50 Apr 29, 2024 Jkt 253001 government from imposing or enforcing, as a matter of law or policy, requirements that provide greater protection to LGBTQI+ children than this section provides. ■ 3. Amend § 1355.34 by revising paragraph (c)(2)(i) to read as follows: § 1355.34 Criteria for determining substantial conformity. * * * * * (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 the child’s needs, and in close proximity to the PO 00000 Frm 00045 Fmt 4701 Sfmt 9990 34861 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; for documentation of the steps taken to make and finalize an adoptive or other permanent placement when the child cannot return home; and for implementation of the requirements of § 1355.22(b) and (d) as applicable (sections 422(b)(8)(A)(ii), 471(a)(16), and 475(5)(A) of the Act and § 1355.22(b) and (d)); * * * * * [FR Doc. 2024–08982 Filed 4–29–24; 8:45 am] BILLING CODE P E:\FR\FM\30APR7.SGM 30APR7

Agencies

[Federal Register Volume 89, Number 84 (Tuesday, April 30, 2024)]
[Rules and Regulations]
[Pages 34818-34861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08982]



[[Page 34817]]

Vol. 89

Tuesday,

No. 84

April 30, 2024

Part VIII





Department of Health and Human Services





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Administration for Children and Families





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45 CFR Part 1355





Designated Placement Requirements Under Titles IV-E and IV-B for 
LGBTQI+ Children; Final Rule

Federal Register / Vol. 89 , No. 84 / Tuesday, April 30, 2024 / Rules 
and Regulations

[[Page 34818]]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1355

RIN 0970-AD03


Designated Placement Requirements Under Titles IV-E and IV-B for 
LGBTQI+ Children

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: Final rule.

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SUMMARY: This rule finalizes requirements under titles IV-E and IV-B 
for children in foster care who are LGBTQI+ (an umbrella term used in 
this regulation). The proposed rule was published on September 28, 
2023. Federal law requires that state and tribal title IV-E and IV-B 
agencies (``agencies'') ensure that each child in foster care receives 
``safe and proper'' care and has a case plan that addresses the 
specific needs of the child while in foster care to support their 
health and wellbeing. To meet these and other related statutory 
requirements, this final rule requires agencies to ensure that 
placements for all children are free from harassment, mistreatment, and 
abuse. The final rule requires that title IV-E and IV-B agencies ensure 
a Designated Placement is available for all children who identify as 
LGBTQI+ and specifies the Designated Placement requirements.

DATES: This final rule is effective on July 1, 2024. Title IV-E and IV-
B agencies must implement the provisions of this final rule on or 
before October 1, 2026.

FOR FURTHER INFORMATION CONTACT: Rebecca Jones Gaston, Administration 
on Children, Youth, and Families, (202) 205-8618, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
    Overview of Notice of Proposed Rulemaking
    Overview of Final Rule
    Legal Authority for the Final Rule
II. Background
    LGBTQI+ Children in the Child Welfare System
    Overrepresentation of LGBTQI+ Children in Foster Care
    Impact of Family and Caregiver Behavior on LGBTQI+ Child 
Wellbeing
    Experience of LGBTQI+ Children in Foster Care
    Mental Health Needs of LGBTQI+ Children
    Current Approaches To Meet the Needs of LGBTQI+ Children in 
Foster Care
III. Regulatory Provisions and Responses to Comments
    Summary of Commenters
    Summary of Comments From State and Local Child Welfare Agencies
    Summary of Comments From Congressional Members
    Summary of Comments From Advocacy Organizations, Providers, and 
Universities
    Summary of Comments From Individual Commenters
    Section by Section Discussion of Regulatory Provisions
    Title and Definition of LGBTQI+
    Section 1355.22(a) Protections Generally Applicable
    Section 1355.22(b)(1) Designated Placements and Services for 
LGBTQI+ Children
    Section 1355.22(b)(2) Process for Notification of and Request 
for Designated Placements
    Section 1355.22(b)(3) Placement and Services Decisions and 
Changes
    Section 1355.22(c) Process for Reporting Concerns About 
Placements and Concerns About Retaliation
    Section 1355.22(d) Retaliation Prohibited
    Section 1355.22(e) Access To Supportive and Age- or 
Developmentally Appropriate Services
    Section 135.22(f) Placement of Transgender and Gender Non-
Conforming Children in Foster Care
    Section 1355.22(g) Compliance With Privacy Laws
    Section 1355.22(h) Training and Notification Requirements
    Section 1355.22(i) Protections for Religious Freedom, 
Conscience, and Free Speech
    Section 1355.22(j) No Penalties for Providers That Do Not Seek 
To Qualify as Designated Placements
    Section 1355.22(k) Severability
    Section 1355.22(l) Implementation
    Section 1355.22(m) No Effect on More Protective Laws or Policies
    Section 1355.34(c) Criteria for Determining Substantial 
Conformity Comments on Cross-Cutting Issues
    Kinship Caregivers
    Impact of the Regulation on Foster Provider Availability and 
Participation
    Youth Disclosure of LGBTQI+ Status
    Research on LGBTQI+ Children in Foster Care
    Nondiscrimination Provisions
    Implementation Costs
    Requests for Technical Assistance and Implementation Supports 
and Questions About Implementation and Compliance Monitoring
IV. Response to Comments Raising Statutory and Constitutional 
Concerns
    First Amendment and Religious Freedom
    Statutory Authority
    Arbitrary and Capricious
    Spending Clause
    Federalism Principles
    Nondelegation Doctrine
    Major Questions Doctrine
    Fulton v. City of Philadelphia
V. Implementation Timeframe
VI. Regulatory Impact Analysis
VII. Tribal Consultation Statement

I. Executive Summary

Overview of Notice of Proposed Rulemaking

    On September 28, 2023 (88 FR 66752), HHS issued a notice of 
proposed rulemaking (NPRM) called Safe and Appropriate Foster Care 
Placement Requirements for Titles IV-E and IV-B. ACF proposed the NPRM 
to support states and tribes in complying with Federal laws that 
require that all children in foster care receive safe and proper care. 
In the NPRM, ACF proposed that it would require agencies to implement 
specific processes and requirements to ensure that children in foster 
care who identify as LGBTQI+ would be placed with foster care providers 
who were trained to meet their specific needs related to their sexual 
orientation and gender identity and who would facilitate access to age-
appropriate services to support their health and wellbeing. The NPRM 
referred to these specially designated placements as ``Safe and 
Appropriate'' placements for LGBTQI+ youth. Under the proposed rule, 
agencies would be required to ensure that such placements were 
available for any child in foster care who identifies as LGBTQI+ and 
provided to any such child in foster care. However, the NPRM would not 
have required providers to become designated as such a placement for 
LGBTQI+ children. The NPRM also proposed agency procedures to ensure a 
child who identifies as LGBTQI+ would not experience retaliation--
regardless of whether the child was in a specially designated ``Safe 
and Appropriate'' placement, or whether the child was placed with a 
foster care provider who had chosen not to seek such a designation.
    The NPRM proposed that title IV-E/IV-B agencies would be required 
to notify specified children (including all children at or above the 
age of 14) about the availability of these placements, the process to 
request such a placement, and the process to report placement concerns. 
The NPRM also set forth specific steps for the placement of 
transgender, intersex, and gender non-conforming children in sex-
segregated child care institutions and required specific training for 
title IV-E/IV-B agency caseworkers and supervisors on how to 
appropriately serve LGBTQI+ children.
    Finally, the proposed rule explained that HHS would monitor a state 
agency's compliance with the requirement in proposed Sec.  
1355.22(a)(1) through the Child and Family Services

[[Page 34819]]

Reviews (CFSRs). As explained in the proposed rule, the CFSRs are a 
formal monitoring protocol in which the state's efforts to comply with 
title IV-E and IV-B program requirements are assessed at the case and 
systems level. No tribal title IV-E agency is currently subject to 
CFSRs because none has a sufficient number of children in foster care 
and children receiving in-home services for ACF to apply the onsite 
CFSR case sampling procedures.

Overview of Final Rule

    In this final rule, ACF clarifies how title IV-E/IV-B agencies must 
meet title IV-E and IV-B statutory requirements to appropriately serve 
LGBTQI+ children in foster care.
    ACF received a total of 13,768 comments on the NPRM and has 
carefully considered each comment. A summary of comments and responses 
are included in sections III and IV of this preamble. Based on comments 
received, ACF has made modifications to the final rule.
    To address requests from many commenters for further clarity about 
the meaning of ``safe and appropriate,'' and its applicability to all 
placements, the final rule distinguishes between the requirement of a 
safe and appropriate placement, which is applicable to all children in 
foster care, and a Designated Placement for LGBTQI+ children, which is 
the term used in the final rule to describe providers who meet 
specified requirements described in the rule to serve as a designated 
provider for LGBTQI+ children. Because Federal law requires that every 
child in foster care receive ``safe and proper'' care and placement in 
the ``most appropriate setting available,'' ACF reiterates that all 
foster care placements must be safe and appropriate for all children--
including LGBTQI+ children. This general protection that all foster 
care placements must be safe and appropriate reiterates existing 
statutory and regulatory requirements that title IV-E/IV-B agencies 
must meet to comply with Federal law for all children in foster care. 
This final rule specifies that as part of meeting the requirement to 
provide a safe and appropriate placement for all children in foster 
care, the title IV-E/IV-B agency must ensure that placements, including 
those for LGBTQI+ children, are free from harassment, mistreatment, and 
abuse, including related to a child's sexual orientation or gender 
identity.
    As set forth in the NPRM, HHS recognizes that LGBTQI+ youth face 
significant disparities in the child welfare system. In order for 
LGBTQI+ youth to receive care that meets Federal statutory guarantees 
that each child in foster care will receive safe and proper care that 
is consistent with the best interest and special needs of the child, 
title IV-E/IV-B agencies must ensure LGBTQI+ children have access to 
specially designated placements that are prepared to meet their unique 
needs and create a supportive environment. This final rule refers to 
those specially designated placements as ``Designated Placements.'' The 
requirements of a Designated Placement are consistent with the 
requirements proposed in the NPRM for specially designated placements 
for LGBTQI+ children (which the NPRM referred to as ``Safe and 
Appropriate'' placements), with some clarifying text added. Recognizing 
that safe and proper treatment for LGBTQI+ children requires attention 
to certain particular harms and risks that this population faces, this 
final rule specifies that Designated Placement providers must have 
particular training and provide particular protections for LGBTQI+ 
children that may not be relevant or necessary for non-LGBTQI+ 
children.
    The final rule does not require any provider to become a Designated 
Placement. Further, the rule specifies that nothing in the rule should 
be construed as requiring or authorizing a state to penalize a provider 
that does not seek or is determined not to qualify as a Designated 
Placement provider. It also says that nothing in this rule shall limit 
any State, tribe, or local government from imposing or enforcing, as a 
matter of law or policy, requirements that provide greater protection 
to LGBTQI+ children than this rule provides.
    The rule requires that the title IV-E/IV-B agency ensure a 
Designated Placement is available for, and may be requested by, any 
child in foster care who identifies as LGBTQI+. In order to be 
considered a Designated Placement for an LGBTQI+ child, the placement 
must satisfy three conditions, each of which goes beyond the general 
requirements that apply to all placements. First, the provider must 
commit to establishing an environment that supports the child's LGBTQI+ 
status or identity. Second, the provider must be trained with the 
appropriate knowledge and skills to provide for the needs of the child 
related to the child's self-identified sexual orientation, gender 
identity, and gender expression. Third, the provider must facilitate 
the child's access to age- or developmentally appropriate resources, 
services, and activities that support their health and well-being. HHS 
has concluded that these conditions are generally necessary to 
effectuate the statutory promise of a safe and appropriate placement 
for children who are LGBTQI+ because of the extensive evidence of the 
specific needs LGBTQI+ children have which require more specialized 
support. This rule requires title IV-E/IV-B agencies to ensure that the 
totality of their child welfare system includes sufficient placements 
for LGBTQI+ children that meet each of these standards.
    As explained further below, when making placement and services 
decisions related to an LGBTQI+ child, the title IV-E/IV-B agency must 
give substantial weight to the child's concerns or request for a 
Designated Placement in determining the child's best interests.
    The final rule requires agencies to notify certain children about 
the availability of Designated Placements, the process to request one, 
and the process to report concerns about their current placement or 
about retaliation against them. Notification requirements apply to all 
children age 14 and over, as well as those under age 14 removed from 
their home due, in whole or part, to familial conflict about their 
sexual orientation, gender identity, gender expression, or sex 
characteristics; or if they have disclosed their LGBTQI+ status or 
identity; or whose LGBTQI+ status or identity is otherwise known to the 
agency. The final rule also requires that the title IV-E/IV-B agency 
ensure that LGBTQI+ children have access to age and developmentally 
appropriate services that support their needs related to their sexual 
orientation and gender identity or expression. This includes clinically 
appropriate mental and behavioral health care supportive of their 
sexual orientation and gender identity and expression, as needed.
    A number of commenters emphasized that, in many cases, if a child 
requests services and a current placement chooses to accept them, that 
could make a current placement more appropriate for an LGBTQI+ child 
and prevent any need for a placement change. Other commenters raised 
concerns about the potential for disruptive placement changes as a 
result of the proposed rule. In response, the final rule recognizes 
that, in addition to requesting a change in placement to a Designated 
Placement, a child could also request that services be offered to 
stabilize their current placement. Moreover, if a child requests a 
Designated Placement, the final rule clarifies that to promote 
placement stability, the title IV-E/IV-B agency must first consider 
whether, if the current provider wishes to accept additional services, 
it would allow the current provider to voluntarily meet the conditions 
for a Designated Placement.

[[Page 34820]]

Promoting such stability is particularly important in cases where 
children are placed with kin, siblings, close to families of origin, 
and in family-like settings. In making the determination about the 
child's best interests, the agency is required to give substantial 
weight to the child's request. If the child's current provider elects 
to become a Designated Placement, in accordance with the case review 
system and protocols, the title IV-E/IV-B agency must regularly review 
the status of the placement to ensure it progresses towards meeting the 
relevant conditions. ACF expects this process will in some cases enable 
title IV-E/IV-B agencies to provide Designated Placements while 
preserving placement stability, particularly in settings where children 
are placed with kin, with siblings, in close proximity to families of 
origin, or in family-like settings as recommended by commenters.
    The final rule also requires that the title IV-E/IV-B agency have a 
procedure to protect LGBTQI+ children in foster care from retaliation 
for disclosure of their LGBTQI+ status and/or identity, if they are 
reported or perceived to have LGBTQI+ status and/or identity, or for 
requesting a Designated Placement. It also requires training for title 
IV-E/IV-B agency caseworkers and supervisors on how to appropriately 
serve LGBTQI+ children and on how to implement the procedural 
requirements of the rule. The final rule requires title IV-E/IV-B 
agencies to ensure that agency contractors and subrecipients who have 
responsibility for placing children in foster care, making placement 
decisions, or providing services, as well as all placement providers, 
are informed of the procedural requirements of the rule.
    The statute at 42 U.S.C. 671(a)(8) enumerates safeguards which 
restrict the use or disclosure of information concerning children in 
foster care. These critical safeguards ensure the privacy and 
confidentiality of children with very limited exceptions. Consistent 
with title IV-E and IV-B confidentiality requirements at 42 U.S.C. 
671(a)(8) and 45 CFR 1355.21(a), 1355.30(p)(3), and 205.50, the final 
rule provides that agencies are prohibited from disclosing information 
about a child's LGBTQI+ status or identity except as provided by 
statute and that any such disclosure must be the minimum necessary to 
accomplish the legally-permitted purposes. In response to comments, the 
final rule clarifies the privacy and confidentiality protections for 
information related to an LGBTQI+ child's status or identity. The 
Children's Bureau will monitor a state agency's compliance through the 
CFSRs, a formal monitoring protocol in which the state's efforts to 
comply with title IV-E and IV-B program requirements are assessed at 
the case and systems level. No tribal title IV-E agency is currently 
subject to CFSRs because none has a sufficient number of children in 
foster care and children receiving in-home services for ACF to apply 
the onsite CFSR case sampling procedures. All requirements of the rule 
will be subject to the partial review process.
    The final rule expressly provides that insofar as the application 
of any requirement under the rule would violate applicable Federal 
protections for religious freedom, conscience, and free speech, such 
application shall not be required. The rule does not require any 
provider to become a Designated Placement, and specifies that nothing 
in the rule should be construed as requiring or authorizing a state to 
penalize a provider that does not seek or is determined not to qualify 
as a Designated Placement from participation in the state's program 
under titles IV-E and IV-B. The final rule also clarifies that the rule 
does not limit any State, Tribal or local government or agency from 
imposing or enforcing as a matter of state, tribal or local law or 
policy, requirements that provide greater protection to LGBTQI+ 
children than this rule provides.

Legal Authority for the Final Rule

    Titles IV-E and IV-B of the Social Security Act (the Act) require 
title IV-E/IV-B agencies to provide case plans for all children in 
foster care. Under section 475(1)(B) of the Social Security Act, 42 
U.S.C. 675(1)(B), case plans must include a plan for assuring that the 
child receives safe and proper care and that services are provided to 
improve the conditions in the parents' home, facilitate return of the 
child to his own safe home or the permanent placement of the child, and 
address the needs of the child while in foster care. The plan must also 
discuss the appropriateness of the services provided to the child under 
the plan. Agencies must also have case review systems through which 
they ensure that each foster child's case plan is ``designed to achieve 
placement in a safe setting that is the least restrictive (most family 
like) and most appropriate setting available and in close proximity to 
the parents' home, consistent with the best interest and special needs 
of the child[.]'' (Section 475(5) of the Social Security Act, 42 U.S.C. 
675(5)(A)) In order to receive title IV-E and IV-B funds, agencies must 
have plans approved by ACF that provide for case plans and case review 
systems that meet these statutory requirements (sections 471(a)(16) and 
422(b) of the Social Security Act, 42 U.S.C. 671(a)(16) and 622(b)).
    Additionally, in order to receive title IV-E funds, states and 
tribes must certify in their title IV-E plans that they will ensure 
that before a child in foster care is placed with prospective foster 
parents, the prospective foster parents ``will be prepared adequately 
with the appropriate knowledge and skills to provide for the needs of 
the child [and] that the preparation will be continued, as necessary, 
after the placement of the child'' (section 471(a)(24) of the Social 
Security Act, 42 U.S.C. 671(a)(24)). The Act also requires that 
agencies ensure that foster parents, as well as at least one official 
at any child care institution providing foster care, receive training 
on how to use and apply the ``reasonable and prudent parent standard,'' 
a ``standard characterized by careful and sensible parental decisions 
that maintain the health, safety, and best interests of a child while 
at the same time encouraging the emotional and developmental growth of 
the child, that a caregiver shall use when determining whether to allow 
a child in foster care under the responsibility of the State to 
participate in extracurricular, enrichment, cultural, and social 
activities'' (Social Security Act 471(a)(24) and (a)(10) and 
475(10)(A), 42 U.S.C. 671(a)(24) and (a)(10) and 675(10)(A)).
    The Act requires agencies to develop and implement standards to 
ensure that children in foster care placements are provided quality 
services that protect their safety and health (Social Security Act 
section 471(a)(22), 42 U.S.C. 671(a)(22)).
    The Act authorizes the Secretary of Health and Human Services (the 
Secretary) to review state compliance with the title IV-E and IV-B 
program requirements. Specifically, the Act requires the Secretary to 
determine whether state programs are in substantial conformity with 
state plan requirements under titles IV-E and IV-B, implementing 
regulations promulgated by the Secretary and the states' approved state 
plans (section 1123A of the Social Security Act, 42 U.S.C. 1320a-2a).
    Finally, the Act authorizes the Secretary to ``make and publish 
such rules and regulations . . . as may be necessary to the efficient 
administration of the functions with which [the Secretary] is charged 
under [the Social Security Act].'' (Section 1102 of the Social Security 
Act, 42 U.S.C. 1302)

[[Page 34821]]

II. Background

LGBTQI+ Children in the Child Welfare System

    As the NPRM explained, a significant body of evidence demonstrates 
that LGBTQI+ children are overrepresented in the child welfare system 
and face poor outcomes in foster care.\1\
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    \1\ Some studies cited below defined their scope as LGBTQ, LGBT, 
or Lesbian, Gay, and Bisexual (LGB) children or youth specifically. 
Where one of those studies is cited, this regulation uses the same 
acronym as the study itself.
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Overrepresentation of LGBTQI+ Children in Foster Care

    LGBTQI+ children are overrepresented in the foster care population. 
One recent confidential survey revealed that 32 percent of foster youth 
ages 12-21 surveyed report that they identify as having a diverse 
sexual orientation or gender identity.\2\ Another large confidential 
survey found that 30.4 percent of foster children aged 10-18 identify 
as LGBTQ+.\3\ A recent study using nationally representative survey 
data found that youth with a minority sexual orientation, such as 
lesbian, gay, and bisexual youth, are nearly two and a half times as 
likely as heterosexual youth to experience a foster care placement.\4\
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    \2\ Institute for Innovation and Implementation at University of 
Maryland's School of Social Work and the National Quality 
Improvement Center on Tailored Services, Placement Stability, and 
Permanency for LBTQ2S Children and Youth in Foster Care (2021). 
Cuyahoga Youth Count: A Report on LBTQ+ Youth Experience in Foster 
Care, https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf.
    \3\ Baams, L., Russell, S.T., and Wilson, B.D.M. LGBTQ Youth in 
Unstable Housing and Foster Care, American Academy of Pediatrics, 
Volume 143, Issue 3, March 2019. https://doi.org/10.1542/peds.2017-4211.
    \4\ Fish, J., Baams, L., Wojciak, A.S., & Russell, S.T. (2019), 
Are Sexual Minority Youth Overrepresented in Foster Care, Child 
Welfare, and Out-of-Home Placement? Findings from Nationally 
Representative Data. Child Abuse and Neglect, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7306404/.
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    A study published in 2016 of the population of youth who have been 
involved in both the foster care and juvenile justice systems found 
that LGBTQ+ juvenile-justice involved youth were three times more 
likely to have been removed from their home and twice as likely to have 
experienced being physically abused in their homes prior to removal 
than their non-LGBTQ+ juvenile-justice involved counterparts.\5\
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    \5\ Irvine, Angela, and Canfield, Aisha. The Overrepresentation 
of Lesbian, Gay, Bisexual, Questioning, Gender Nonconforming and 
Transgender Youth within the Child Welfare to Juvenile Justice 
Crossover Population, 24.2 A.m. U. J. Gender Soc. Pol'y & L., 243-
261 (2016), https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1679&context=jgspl.
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    LGBTQI+ children are overrepresented in the child welfare system 
because of a confluence of factors. Studies suggest that LGBTQ+ 
children face higher rates of parental physical abuse and are more 
likely to run away from home or be kicked out than their non-LGBTQ+ 
counterparts, often because of conflict over their sexual orientation 
or gender identity.\6\ These experiences place LGBTQI+ children at 
greater risk of entering foster care and mean that many LGBTQI+ 
children enter foster care with complex needs and trauma related to the 
discrimination and stigma they have experienced because of their sexual 
orientation or gender identity. As a result of reviewing this research, 
and hearing from LGBTQI+ individuals with lived experience in foster 
care, we have developed this regulation to improve how title IV-E/IV-B 
agencies address the needs of this population.\7\
---------------------------------------------------------------------------

    \6\ Friedman, M., Marshal, M., Guadamuz, T., Wei, C., Wong, C., 
Saewyc, C., and Stall, R., 2011: A Meta-Analysis of Disparities in 
Childhood Sexual Abuse, Parental Physical Abuse, and Peer 
Victimization Among Sexual Minority and Sexual Nonminority 
Individuals American Journal of Public Health 101, 1481_1494, 
https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2009.190009. 
Pearson, J., Thrane, L., & Wilkinson, L. (2017). Consequences of 
runaway and thrown away experiences for sexual minority health 
during the transition to adulthood. Journal of LGBT Youth, 14(2), 
145-171, https://www.tandfonline.com/doi/full/10.1080/19361653.2016.1264909. For a review of risk factors impacting 
children in foster care see Matarese, M., Greeno, E. and Betsinger, 
A. (2017). Youth with Diverse Sexual Orientation, Gender Identity 
and Expression in Child Welfare: A Review of Best Practices. 
Baltimore, MD: Institute for Innovation & Implementation, University 
of Maryland School of Social Work, https://qiclgbtq2s.org/wp-content/uploads/sites/6/2018/05/LGBTQ2S-Lit-Review_-5-14-18.pdf.
    \7\ ACF held two listening sessions with LGBTQI+ youth with 
lived experience in foster care on February 9, 2023, and December 
18, 2023.
---------------------------------------------------------------------------

Impact of Family and Caregiver Behavior on LGBTQI+ Child Wellbeing

    Research shows that the support LGBTQI+ children receive from their 
families and caregivers related to their sexual orientation or gender 
identity is highly predictive of their mental health and wellbeing. For 
example, a 2022 survey found the five most common ways that LGBTQ youth 
reported feeling supported by their parents or caregivers included 
having been welcoming to their LGBTQ friends or partners, talking with 
them respectfully about their LGBTQ identity, using their name and 
pronouns correctly, supporting their gender expression, and educating 
themselves about LGBTQ people and issues. That survey found that LGBTQ 
youth who felt high social support from their family in these ways 
reported less than half the number of suicide attempts than LGBTQ youth 
who experienced low or moderate social support from their family.\8\ 
Another study quantified the negative impacts of family rejection of 
LGBTQ children, which can lead to greater representation in foster 
care.\9\ The study found that family behaviors, including excluding 
LGBTQ children from family events and activities because of their 
identity, not letting their child learn about their LGBTQ identity, or 
trying to change their child's LGBTQ identity increased the risk of 
depression, suicide, illegal drug use, and other serious health risks. 
The study also found that family behaviors that support LGBTQ children, 
including standing up for their child when others mistreat them because 
of their LGBTQ identity, had positive outcomes, helped promote self-
esteem, overall health, and protected against suicidal behavior, 
depression, and substance abuse. The study found that lesbian, gay, and 
bisexual young adults who reported high levels of family rejection 
during adolescence were more than eight times more likely to report 
having attempted suicide, nearly six times more likely to report high 
levels of depression, and more than three times more likely to use 
illegal drugs compared with their lesbian, gay, and bisexual 
counterparts from families that reported no or low levels of family 
rejection.\10\ Studies found improved health outcomes in youth whose 
caregivers demonstrated supportive behavior towards the child's LGBTQ+ 
identity, including connecting the child to an LGBTQ+ adult role 
model.\11\ Moreover, caregiver behavior

[[Page 34822]]

that is not affirming, including refusing to use a child's chosen name 
and pronouns, or ridiculing or name-calling because of the child's 
LGBTQ+ identity, contributes to increased risks for serious health 
concerns for the child, such as depression, suicidal thoughts, suicidal 
attempts, and illegal drug use.\12\
---------------------------------------------------------------------------

    \8\ The Trevor Project, 2022 National Survey on LGBTQ Youth 
Mental Health, https://www.thetrevorproject.org/survey-2022/assets/static/trevor01_2022survey_final.pdf.
    \9\ See Innovations Institute, University of Connecticut School 
of Social Work, Family Acceptance Project, and National SOGIE Center 
(n.d.). Parents & Families Have a Critical Impact on Their LGBTQ 
Children's Health Risks & Well-Being [Fact Sheet]. Data for the fact 
sheet is drawn from Ryan, C (2021) Helping Diverse Families Learn to 
Support Their LGBTQ Children to Prevent Health and Mental Health 
Risks and Promote Well-Being, San Francisco, Family Acceptance 
Project, San Francisco State University. Ryan, C., Huebner, D., 
Diaz, R.M., & Sanchez, J. (2009). Family rejection as a predictor of 
negative health outcomes in white and latino lesbian, gay, and 
bisexual young adults. Pediatrics, 123(1), https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext.
    \10\ Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009). 
Family rejection as a predictor of negative health outcomes in white 
and latino lesbian, gay, and bisexual young adults. Pediatrics, 
123(1), https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext.
    \11\ Ryan, C (2021) Helping Diverse Famiies Learn to Support 
Their LGBTQ Children to Prevent Health and Mental Health Risks and 
Promote Well-Being, San Francisco, Family Acceptance Project, San 
Francisco State University, https://lgbtqfamilyacceptance.org/wp-content/uploads/2021/11/FAP-Overview_Helping-Diverse-Families6.pdf.
    \12\ Ibid.
---------------------------------------------------------------------------

Experience of LGBTQI+ Children in Foster Care

    A meaningful body of research demonstrates that LGBTQI+ children in 
foster care face disproportionately worse outcomes and experiences than 
other children in foster care due to their specific mental health and 
well-being needs often being unmet. Further, evidence from qualitative 
studies, listening sessions, and Congressional testimony makes clear 
that many LGBTQI+ foster youth do not currently receive placements or 
services that are safe and proper, as required by statute.\13\
---------------------------------------------------------------------------

    \13\ For examples, see Weston Charles-Gallo testimony before the 
Ways and Means Committee Worker and Family Support Subcommittee 
Hearing on ``Making a Difference for Families and Foster Youth,'' 
May 12, 2021, https://www.congress.gov/117/meeting/house/112622/witnesses/HHRG-117-WM03-Wstate-Charles-GalloW-20210512.pdf. Creating 
Safer Spaces for Youth who are LGBTQ in Broward County, Florida: 
Collecting SOGIE Data for Life-Coaching Services. Vol. 96, No. 1, 
Special Issue: Sexual Orientation, Gender Identity/Expression, and 
Child Welfare (First of two issues) (2018), pp. 27-52 (26 pages), 
https://www.jstor.org/stable/48628034. Mountz, S., Capous-Desyllas, 
M., & Pourciau, E. (2018). `Because we're fighting to be ourselves:' 
voices from former foster youth who are transgender and gender 
expansive. Child Welfare, Suppl.Special Issue: Sexual Orientation, 
Gender Identity/Expression, and Child Welfare, 96(1), 103-125, 
https://www.proquest.com/scholarly-journals/because-were-fighting-be-ourselves-voices-former/docview/2056448509/se-2. ACF held two 
listening sessions with LGBTQI+ youth with lived experience in 
foster care on February 9, 2023, and December 18, 2023.
---------------------------------------------------------------------------

    LGBTQI+ children in foster care report experiencing mistreatment 
related to their sexual orientation or gender identity. One study found 
that ``one of the most consistent themes that LGBTQ youth in foster 
care have conveyed in focus groups and qualitative interviews is a 
tendency to be harassed, teased, and bullied by staff, peers, and 
[foster] care providers . . . LGBTQ youth are often excluded and 
rejected by their peers and caretakers . . . It is common for LGBTQ 
youth in group home and foster home settings to be isolated to their 
own bedroom or to their own wing of the house due to fears of placing 
them with youth of the same sex.'' \14\
---------------------------------------------------------------------------

    \14\ McCormick, A., Schmidt, K., and Terrazas, S. (2017) LGBTQ 
Youth in the Child Welfare System: An Overview of Research, 
Practice, and Policy, Journal of Public Child Welfare, 11:1, 27-39, 
DOI: 10.1080/15548732.2016.1221368, https://doi.org/10.1080/15548732.2016.1221368.
---------------------------------------------------------------------------

    Children in foster care who identify as LGBTQI+ are more likely to 
be placed in congregate care settings (group homes and residential care 
rather than family like settings), experience multiple placements, and 
have adverse experiences in their placement than non-LGBTQI+-
identifying youth.\15\ One study found that LGBTQI+ youth in foster 
care are more likely to experience at least 10 foster care placements, 
with youth of color who are LGBTQ reporting the highest rates.\16\
---------------------------------------------------------------------------

    \15\ Wilson, B.D.M., & Kastanis, A.A. (2015). Sexual and gender 
minority disproportionality and disparities in child welfare: A 
population-based study. Children and Youth Services Review, 58, 11-
17, and Bianca D.M. Wilson, Angeliki A. Kastanis, Sexual and gender 
minority disproportionality and disparities in child welfare: A 
population-based study, Children and Youth Services Review, Volume 
58, 2015, Pages 11-17, ISSN 0190-7409, https://doi.org/10.1016/j.childyouth.2015.08.016.
    \16\ Poirier, J., Wilkie, S., Sepulveda, K. & Uruchima, T., Jim 
Casey Youth Opportunities Initiative: Experiences and Outcomes of 
Youth Who Are LGBTQ, 96.1 Child Welfare, 1-26 (2018), https://www.proquest.com/docview/2056448464.
---------------------------------------------------------------------------

    A 2021 study showed that children in foster care who identify as 
LGBTQ+ report a perception of poor treatment by the foster care system 
more frequently than their non-LGBTQ peers and feel less frequently 
that they can be themselves.\17\ Children in foster care who identify 
as LGBTQI+ are less likely to report at least ``good'' physical and 
mental health and are less likely to have at least one supportive adult 
on whom they can rely for advice or guidance than their non-LGBTQI+ 
counterparts in foster care.\18\
---------------------------------------------------------------------------

    \17\ Matarese, M., Greeno, E., Weeks, A., Hammond, P. (2021). 
The Cuyahoga youth count: A report on LGBTQ+ youth's experience in 
foster care. Baltimore, MD: The Institute for Innovation & 
Implementation, University of Maryland School of Social Work, 
https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf.
    \18\ Poirier, J., Wilkie, S., Sepulveda, K. & Uruchima, T., Jim 
Casey Youth Opportunities Initiative: Experiences and Outcomes of 
Youth Who Are LGBTQ, 96.1 Child Welfare, 1-26 (2018), https://www.proquest.com/docview/2056448464.
---------------------------------------------------------------------------

    In one study that looked at LGBTQ+ status-related discrimination, 
37.7 percent of children in foster care ages 12 through 21 who identify 
as LGBTQ+ reported poor treatment connected to their gender expression, 
sexual minority status, or transgender status. The study also showed 
that LGBTQ+ foster youth were more likely than their non-LGBTQ+ foster 
youth counterparts to have been hospitalized for emotional reasons or 
been homeless at some point in their life.\19\
---------------------------------------------------------------------------

    \19\ Wilson, B.D.M., Cooper, K., Kastanis, A., & Nezhad, S. 
(2014), Sexual and Gender Minority Youth in Foster care: Assessing 
Disproportionality and Disparities in Los Angeles, The Williams 
Institute, UCLA School of Law, https://williamsinstitute.law.ucla.edu/wp-content/uploads/SGM-Youth-in-Foster-Care-Aug-2014.pdf.
---------------------------------------------------------------------------

    Research has also demonstrated strong correlations between LGBTQI+ 
children who spent time in foster care and who later experienced 
housing instability, homelessness, and food insecurity. LGBTQI+ youth 
who reported past housing instability or a current homeless episode 
were six times more likely to have been in foster care than LGBTQI+ 
youth who did not report any housing instability.\20\
---------------------------------------------------------------------------

    \20\ DeChants, J.P., Green, A.E., Price, M.N., & Davis, C.K. 
(2021), Homelessness and Housing Instability Among LGBTQ Youth, West 
Hollywood, CA, The Trevor Project, https://www.thetrevorproject.org/wp-content/uploads/2022/02/Trevor-Project-Homelessness-Report.pdf.
---------------------------------------------------------------------------

    These many findings illustrate the need for child welfare personnel 
and foster parents to be trained on their critical role in the lives of 
LGBTQI+ children to avoid re-traumatization and further victimization 
of children.\21\ Implementing strategic training and recruitment to 
meet the well-being needs of children who are LGBTQI+ is critical.
---------------------------------------------------------------------------

    \21\ For a review of best practices for child welfare 
practitioners, see Matarese, M., Greeno, E. and Betsinger, A. 
(2017). Youth with Diverse Sexual Orientation, Gender Identity and 
Expression in Child Welfare: A Review of Best Practices. Baltimore, 
MD: Institute for Innovation & Implementation, University of 
Maryland School of Social Work, https://qiclgbtq2s.org/wp-content/uploads/sites/6/2018/05/LGBTQ2S-Lit-Review_-5-14-18.pdf.
---------------------------------------------------------------------------

Mental Health Needs of LGBTQI+ Children

    Research consistently shows that when LGBTQI+ youth experience 
supportive environments and services, they experience the same positive 
mental health outcomes as other youth.\22\ However, research 
demonstrates that LGBTQI+ youth in foster care face significant mental 
health disparities that result from experiences of stigma and 
discrimination. A 2020 survey found that LGBTQ youth in foster care 
were more than two and a half times more likely to report a past year 
suicide attempt than LGBTQ youth who were not in foster care, with 35 
percent of LGBTQ foster youth reporting

[[Page 34823]]

such an attempt. Reports of past year suicide attempt rates were even 
higher among LGBTQ+ foster youth of color (38 percent) and non-binary 
and transgender foster youth (45 percent).\23\
---------------------------------------------------------------------------

    \22\ Substance Abuse and Mental Health Services Administration 
(SAMHSA): Moving Beyond Change Efforts: Evidence and Action to 
Support and Affirm LGBTQI+ Youth. SAMHSA Publication No. PEP22-03-
12-001. Rockville, MD: Center for Substance Abuse Prevention. 
Substance Abuse and Mental Health Services Administration, 2023, 
https://store.samhsa.gov/sites/default/files/pep22-03-12-001.pdf.
    \23\ The Trevor Project, 2022 National Survey on LGBTQ Youth 
Mental Health, https://www.thetrevorproject.org/survey-2022/assets/static/trevor01_2022survey_final.pdf.
---------------------------------------------------------------------------

    One area of particular concern for the mental health of LGBTQI+ 
youth in foster care is possible exposure to sexual orientation or 
gender identity or expression change efforts (so-called ``conversion 
therapy''), as well as other actions to change, suppress or undermine a 
child's sexual orientation, gender identity, or gender expression. Such 
efforts are not supported by credible evidence and have been rejected 
as harmful by the American Academy of Child and Adolescent Psychiatry, 
the American Academy of Pediatrics, the American Psychiatric 
Association, the American Psychological Association, and the National 
Association of Social Workers, among others.\24\ The American 
Psychological Association (APA) has concluded that any behavioral 
health or other effort that attempts to change an individual's gender 
identity or expression is inappropriate and, further, can cause harm 
and/or suffering. After reviewing scientific evidence on gender 
identity change efforts, harm, affirmative treatments, and professional 
practice guidelines, the APA has affirmed gender identity change 
efforts are associated with reported harm, and the APA opposes these 
practices because of their association with harm.\25\ Likewise, 
according to the APA, sexual orientation change efforts are ``coercive, 
can be harmful, and should not be part of behavioral health 
treatment.\26\ A literature review by Substance Abuse and Mental Health 
Services Administration (SAMHSA) discussed in its 2023 report, ``Moving 
Beyond Change Efforts: Evidence and Action to Support and Affirm 
LGBTQI+ Youth'' concluded that [sexual orientation change efforts] were 
not effective and may cause harm.'' It found that no research has 
``demonstrated that gender identity change efforts are effective in 
altering gender identity.'' In fact, the review found that ``exposure 
to gender identity change efforts . . . is associated with harm, 
including suicidality, suicide attempt, and other negative mental 
health outcomes such as severe psychological distress.'' \27\
---------------------------------------------------------------------------

    \24\ Substance Abuse and Mental Health Services Administration, 
FAQs About Finding LGBTQI+ Inclusive Providers, https://www.samhsa.gov/behavioral-health-equity/lgbtqi/faqs.
    \25\ American Psychological Association, APA Resolution of 
Gender Identity Change Efforts, February 2021, https://www.apa.org/about/policy/resolution-gender-identity-change-efforts.pdf.
    \26\ American Psychological Association, APA Resolution on 
Sexual Orientation Change Efforts, February 2021, https://www.apa.org/about/policy/resolution-sexual-orientation-change-efforts.pdf.
    \27\ Substance Abuse and Mental Health Services Administration 
(SAMHSA): Moving Beyond Change Efforts: Evidence and Action to 
Support and Affirm LGBTQI+ Youth. SAMHSA Publication No. PEP2203-12-
001. Rockville, MD: Center for Substance Abuse Prevention. Substance 
Abuse and Mental Health Services Administration, 2023, https://store.samhsa.gov/product/moving-beyond-change-efforts-evidence-and-action-support-and-affirm-lgbtqi-youth/pep22-03-12-001.
---------------------------------------------------------------------------

Current Approaches To Meet the Needs of LGBTQI+ Children in Foster Care

    Current approaches for meeting the needs of LGBTQI+ children in 
foster care vary across states and tribes. Some agencies use, or are 
working towards implementing, child welfare practice models that 
address the specific needs of LGBTQI+ children, in line with existing 
Federal statutory requirements applicable to all children in foster 
care. In 2023, the Child Welfare Information Gateway issued a report on 
``Protecting the Rights and Providing Appropriate Services to LGBTQI+ 
Youth in Out-of-Home Care'' (``Report'').\28\ The Report provides a 
review of state laws, regulations, and policies related to reducing the 
negative experiences of any child who identifies as LGBTQI+, including 
laws and policies that support a child's ability to be safe and free 
from discrimination; have access to needed care and services; and be 
placed in ``safe and supportive'' placement settings with caregivers 
who have received appropriate training. The Report found that 22 states 
and the District of Columbia require agencies to provide youth who 
identify as LGBTQI+ with services and supports that are tailored to 
meet the specific needs of an LGBTQI+ child, such as providing clothing 
and hygiene products and referring to the child by the name and 
pronouns that align with their gender identity. The Report found that 
eight states and the District of Columbia offer developmentally 
appropriate case management that helps child welfare workers support 
LGBTQI+ youth. The Report found that fifteen states and the District of 
Columbia require training on LGBTQI+ issues for foster caregivers and 
related staff, including on how to communicate effectively and 
professionally with youth who identify as LGBTQI+, and education on 
current social science research and common risk factors for LGBTQI+ 
youth experiencing various negative outcomes.
---------------------------------------------------------------------------

    \28\ Child Welfare Information Gateway, Protecting the Rights 
and Providing Appropriate Services to LGBTQIA2S+ Youth in Out-of-
Home Care, 2023, https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/LGBTyouth/.
---------------------------------------------------------------------------

    However, the Report also demonstrates that a majority of title IV-
E/IV-B agencies do not have laws, regulations, or policies to make 
appropriate services and supports or Designated Placements available to 
an LGBTQI+ child in foster care. Without such laws or policies, 
agencies may not adequately meet statutory requirements that guarantee 
that LGBTQI+ children in foster care, like all foster children, receive 
a safe and proper placement. In March 2022, ACF published Information 
Memorandum (IM) ACYF-CB-IM-22-01, which included suggestions on how 
agencies could best provide services and supports to each LGBTQI+ child 
who is at risk of entering or is in foster care.\29\ ACF believes this 
final rule will help address the extensively documented risk factors 
and adverse outcomes for LGBTQI+ children in foster care.
---------------------------------------------------------------------------

    \29\ Children's Bureau, Guidance for Title IV-B and IV-E 
Agencies When Serving LGBTQI+ Children and Youth, March 2, 2022, 
https://www.acf.hhs.gov/cb/policy-guidance/im-22-01.
---------------------------------------------------------------------------

III. Regulatory Provisions and Responses to Comments

Summary of Commenters

    The comment period for the NPRM was open for 60 days and closed on 
November 27, 2023. We received a total of 13,768 comments consisting 
of:
     Comments from 15 state or local child welfare agencies and 
governmental entities, such as state attorneys generals (AG) and a 
state civil legal aid office;
     Two letters representing 26 congressional members;
     Comments from 65 advocacy organizations, providers, and 
university institutes; and
     13,536 comments from individuals, more than 12,000 of 
which consisted of two form letters, one in support and one in 
opposition.
    We also received comments that were submitted on a different NPRM, 
were out of scope, or were duplicate submissions, and will therefore 
not be addressed. No comments were received by the deadline from Indian 
Tribes, Tribal organizations or consortiums, or organizations that 
represent Tribal interests. The comments are available in the docket 
for this action on https://www.regulations.gov/docket/ACF-2023-0007/comments. We reviewed and analyzed all of the NPRM comments and 
considered them in finalizing this rule.
    Below is a summary of comments received. We include a detailed

[[Page 34824]]

response to comments in section IV of this preamble.

Summary of Comments by Commenter Type

Summary of Comments From State and Local Child Welfare Agencies

    Four states or government entities expressed support: three were 
supportive of ACF's goal to improve care for LGBTQI+ children but also 
expressed concerns and recommended substantive changes to the proposal, 
and one expressed a neutral position. The supporters expressed that 
they are currently undertaking efforts to meet the needs of LGBTQI+ 
children in foster care, such as state-level non-discrimination laws, a 
foster children's bill of rights, resource groups for LGBTQI+ community 
outreach, requiring providers to demonstrate an ability to support 
LGBTQI+ children, and training for their workforce on cultural 
competency and sensitivity related to sexual orientation and gender 
identity. State agencies and governments who supported the rule 
expressed appreciation for the efforts of HHS to establish protections 
for LGBTQI+ children in foster care. They also supported some of the 
NPRM's requirements around assessing that placements meet the unique 
needs of LGBTQI+ children, reporting concerns with such placements, and 
placing children in sex-segregated child care institutions according to 
their gender identity.
    Four states or government entities and the three letters 
representing 20 state attorneys general opposed the proposal. The state 
agencies and governments who opposed the rule stated a general belief 
that the NPRM creates a separate and distinct process for LGBTQI+ 
children that violates privacy and raised concerns related to the 
religious beliefs of providers. Additional concerns raised included 
that the NPRM would require an ``upfront'' conversation about a child's 
sexual orientation and gender identity instead of allowing a child to 
decide when to share this information with their case worker. Those 
states or entities who opposed the NPRM also argued that it creates a 
``cumbersome fix'' for a problem that lacks clear definition while 
states are currently having issues finding enough providers for all 
children in foster care. They also argued that the NPRM's provisions 
would disincentivize families who may object to providing specially 
designated care for LGBTQI+ children from serving as foster parent 
providers and would ``drive individuals and organizations of faith 
away.'' They also expressed concerns that most congregate care 
providers are not currently equipped to meet the provisions around 
placing children according to their gender identity. Finally, there 
were objections to what they saw as unfunded burdens on the agencies to 
develop new trainings, modify licensing and placement rules, and revise 
case management systems to track placements, notifications, and other 
requirements in the NPRM.
    Letters from State attorneys general raised legal concerns that the 
NPRM violates various statutory and constitutional requirements; these 
concerns are addressed in section IV.
    Suggestions for revisions from state and local child welfare 
agencies and Government entities included:
     Expanding the approach proposed in the NPRM to apply the 
process to report placement concerns and provide notice to all children 
in foster care and not only to those specified in the NPRM, such as 
those over age 14;
     Providing clear guidance related to all of the rule's 
requirements and specifically the treatment of kin placements;
     Providing more funding to establish or enhance services 
for LGBTQI+ children within the states; in rural areas; and for 
recruitment, retention, and training of child welfare workers and 
foster care providers; and
     Replacing specific terms or phrases to broaden or provide 
flexibility to certain requirements, such as replacing ``retaliation'' 
with ``discrimination'' and replacing ``age-appropriate'' with 
``developmentally appropriate.''

Summary of Comments From Congressional Members

    Two sign-on letters from a total of 26 congressional members 
expressed opposition to the NPRM. They generally expressed a belief 
that the NPRM imposes mandates on a subset of children based 
exclusively on the child's gender identity and sexual orientation while 
there are no Federal policies that define ``safe and proper care'' for 
other children with unique characteristics, such as those living with a 
disability. They argued that the proposed rule would dissuade families 
of faith from being foster parents, thus impacting availability of 
foster care placements and that the training requirements would impact 
availability of caseworkers. They also expressed concern that the 
proposed rule will impose ``significant financial and administrative 
burdens'' on title IV-E agencies. They expressed concerns about the 
NPRM's requirements for transgender children and that placing children 
according to their gender identity could result in children being 
placed in settings ``they find uncomfortable and invasive or, at worst, 
unsafe.''

Summary of Comments From Advocacy Organizations, Providers, and 
Universities

    Of the 65 advocacy organizations, providers, and university 
institutions that commented, 34 were supportive of the Department's 
goal to improve care for LGBTQI+ children but also recommended 
substantive changes to the proposal. Seven expressed support without 
recommending changes to the proposal, and 24 opposed.
    Those organizations, providers, and university institutions who 
supported the rule without making changes concurred with the research 
summarized in the NPRM that demonstrates the complex challenges faced 
by LGBTQI+ children in foster care and agreed that the NPRM would help 
prevent discrimination and retaliation against LGBTQI+ children by 
allowing them to express their identities without fear of 
discrimination. They argued that the NPRM balances the exercise of 
religion with the need to ensure child wellbeing and represents an 
essential step towards creating an inclusive and supportive child 
welfare community. Some of the providers who commented expressed 
support for the NPRM and outlined the programs, policies, and 
procedures that they currently undertake to assist LGBTQI+ children in 
foster care. These practices included training kin caregivers and 
families of origin on affirming care, helping youth identify lasting 
affirming connections, having a mix of residential facilities for 
children, and training for facilities staff.
    The 34 advocacy organizations, providers, and university institutes 
that expressed general support but also concerns with the NPRM's 
requirements appreciated ACF's commitment to ensuring that LGBTQI+ 
children in foster care are protected from harm. They agreed that 
LGBTQI+ children are overrepresented in the child welfare system and 
appreciated that ACF's summary of research documents the discrimination 
and challenges LGBTQI+ children in foster care face.
    However, some of the advocacy organization and providers that 
commented expressing overall support also raised concerns about the 
approach of the NPRM and some stated that it was vague, lacking 
clarification at various decision-making points, and would negatively 
impact the availability of providers, specifically kin and religious

[[Page 34825]]

providers. Commenters raised concerns over freedom of religion and the 
legality of the NPRM's proposed requirements. Several organizations 
argued the NPRM as drafted could harm, instead of help, LGBTQI+ 
children in foster care. Specific concerns about the NPRM raised by 
these commenters include that the proposed rule added a layer of 
bureaucracy on child welfare agencies; may present a burden for kin 
caregiver providers to meet; creates a ``two-tiered system'' where non-
LGBTQI+ children have an expectation of safety anywhere, but for 
LGBTQI+ children only certain placements are ``safe and appropriate''; 
places the onus on children to request a placement change, requiring 
them to disclose their identity when they may not feel comfortable 
doing so; did not explicitly contain anti-discrimination policies; 
lacked additional funding to implement the rule's requirements; and 
questioned whether CFSR would be the best mechanism for monitoring. As 
with all comments noted in these summaries, these concerns are 
addressed in the comment and response section that follows.
    A number of the commenters who opposed the NPRM said that, while 
they agreed that every child in foster care should feel safe and be in 
a hostility-free environment, they were concerned that the NPRM only 
applied to LGBTQI+ children. Those that opposed generally argued the 
NPRM infringes upon religious liberties, questioned whether it was 
legal in its approach, and stated it minimized the contributions of 
faith-based providers. Some providers who submitted comments said the 
NPRM would have ``unintended consequences'' such as exacerbating the 
placement shortage. They also argued the NPRM was overly broad and 
vague, for example stating that not defining ``hostility, mistreatment, 
and abuse'' was ``deliberate'' to enable labeling providers as unsafe 
for ``simply disagreeing with the state's so-called `appropriate' 
method for caring for LGBT children.'' They expressed concern that the 
NPRM would preclude ``reasonable efforts'' to help children think 
through their ``current feelings and assumptions'' arguing that foster 
parents should be free to offer their views. They also expressed 
concerns that ``age-appropriate services and supports'' could require 
gender-affirming care for transgender minors, which they argued creates 
various risks for children and should not be provided. Some commenters 
said that the NPRM's provision to place children according to their 
gender identity would ``threaten girls' privacy'' and that requiring 
use of a youth's chosen pronouns is a violation of free speech. A few 
commenters suggested instead creating a certification process for 
providers who have undergone training to be particularly supportive and 
affirming for LGBTQI+ children in foster care, such as something 
similar to having training to be a therapeutic foster care placement.

Summary of Comments From Individual Commenters

    As noted earlier, we received approximately 13,536 comments from 
individuals, more than 12,000 of which consisted of two form letters. 
Of those, over 1,700 form letters expressed support, and over 10,000 
form letters expressed opposition. Additionally, over 100 non-form 
letters expressed support, over 1,300 non-form letters expressed 
opposition, and 25 non-form letters expressed a neutral position. In 
general, the supportive commenters agreed that LGBTQI+ children are 
overrepresented in foster care, applauded HHS for requiring agencies to 
maintain enough safe and appropriate placements for LGBTQI+ children, 
and expressed their belief that this rule would be a ``huge step 
forward'' in keeping children safe. They also agreed that LGBTQI+ 
foster children should not be subjected to abuse or discrimination, 
including by placements that practice ``conversion therapy.'' Some 
commenters stated that agencies have no policies that protect LGBTQI+ 
children in foster care and that the proposals in the NPRM will create 
important mandates for agencies and providers. Others expressed that 
ensuring that providers are trained and equipped with skills to provide 
for a child's needs regarding sexual orientation and gender identity is 
the ``next step in improving the well-being of the LGBTQI+ youth in 
foster care.'' Supportive commenters asked who will define ``safe and 
proper care.''
    Commenters who expressed opposition expressed a belief that the 
approach taken in the NPRM would harm, rather than help, children in 
foster care. They argued that it would disqualify most faith-based 
providers and label people of faith and religious organizations as 
``unsafe'' and ``inappropriate.'' The individuals and anonymous 
commenters who opposed the NPRM expressed concerns that the proposal 
would reduce the number of available providers, exacerbate the 
placement shortage, and discourage religious families and individuals 
from becoming foster parents or seeking employment in the child welfare 
profession. There were also a substantial number of commenters who 
appeared to misunderstand or misinterpret the NPRM's provisions, 
including a substantial number of comments discussing the 
appropriateness or lack thereof of gender-affirming care for children. 
These comments are outside the scope of the rule because this rule does 
not establish any particular standard of medical care or require that 
anyone receive any particular medical services.
    The 25 commenters who expressed neutral positions shared personal 
stories of their experience with LGBTQI+ children or foster care, views 
on child rearing, or generally that placements should be free from 
hostility and mistreatment.

Section by Section Discussion of Regulatory Provisions

    We respond to the relevant comments we received in response to the 
NPRM in this section-by-section discussion.

Title and Definition of LGBTQI+

    In the proposed rule we proposed the title of Sec.  1355.22 to be 
``Placement requirements under titles IV-E and IV-B for children who 
identify as lesbian, gay, bisexual, transgender, queer or questioning, 
intersex, as well as children who are non-binary or have non-conforming 
gender identity or expression.'' The proposed rule used the terms 
``LGBTQI+ status'' and ``LGBTQI+ identity'' in various locations to 
refer to LGBTQI+ children.
    Comments: Some commenters encouraged ACF to amend the rule to 
explicitly include other identities--such as children who are Two 
Spirit--to be as inclusive as possible and provide clarity for 
providers. Some commenters encouraged ACF to explicitly include 
children with a variation in sex characteristics in addition to 
intersex children, as not all such children identify as intersex. Other 
commenters encouraged ACF to include protections based on ``LGBTQI+ 
identity'' in addition to ``LGBTQI+ status'' to provide maximum clarity 
about which children are entitled to Designated Placements.
    Response: ACF agrees that addressing the needs of Two Spirit youth 
in the child welfare system is an important part of this regulation. 
ACF also agrees with the importance of providing clarity to title IV-E/
IV-B agencies and providers about the meaning of the term ``LGBTQI+.'' 
For the purposes of this rule, the term refers to children who identify 
as lesbian, gay, bisexual, transgender, queer or questioning, intersex, 
as well as children who are non-binary, Two-Spirit, or have non-

[[Page 34826]]

conforming gender identity or expression, all of whom are referred to 
under the umbrella term of LGBTQI+ for this regulation.
    For streamlining purposes, ACF updated the final rule's regulatory 
text to read ``LGBTQI+ children (including children who are lesbian, 
gay, bisexual, transgender, queer or questioning, and intersex).'' The 
word ``including'' clarifies that the umbrella term LGBTQI+ includes 
children who are non-binary, Two-Spirit, or have non-conforming gender 
identity or expression as well.
    We also agree with commenters that the use of both ``LGBTQI+ 
status'' and ``LGBTQI+ identity'' offers greater clarity. The term 
``LGBTQI+ status'' is frequently used in reference to protecting 
LGBTQI+ individuals from discrimination, harm, and mistreatment based 
on their ``LGBTQI+ status.'' Protecting a child from mistreatment based 
on their ``LGBTQI+ status'' would include protections should the child 
disclose their LGBTQI+ identity, should a third party identify a child 
as LGBTQI+, or should the child be perceived as having an LGBTQI+ 
identity. Other sections of the NPRM provided protections to children 
based on their ``LGBTQI+ identity.'' The term ``LGBTQI+ identity'' is 
frequently used when a person self-identifies as LGBTQI+. For this 
final rule, ACF uses the term ``LGBTQI+ status or identity,'' and any 
reference to LGBTQI+ children is intended to include both children with 
LGBTQI+ status and LGBTQI+ identity. For brevity, ACF has revised the 
title of this final regulation to be ``Designated Placement 
requirements under titles IV-E and IV-B for LGBTQI+ children.''
    In regard to questions about children with variations in sex 
characteristics, ACF acknowledges that not all children with variations 
in sex characteristics self-identify with the term intersex but 
believes that the term LGBTQI+ provides sufficient clarity that the 
rule's protections apply to such children.
    Final Rule Change: ACF updated the title of the regulation to 
``Designated Placement requirements under titles IV-E and IV-B for 
LGBTQI+ children'' and updated the rule text to read ``LGBTQI+ children 
(including children with lesbian, gay, bisexual, transgender, queer or 
questioning, and intersex status or identity).''

Section 1355.22(a) Protections Generally Applicable

    In Sec.  1355.22(a)(1) of the proposed rule, ACF proposed to 
require that title IV-E/IV-B agencies ensure that a safe and 
appropriate placement is available for and provided to all children in 
foster care, including each LGBTQI+ child in foster care. The proposed 
rule referred to specially designated placements for LGBTQI+ children 
in foster care as ``Safe and Appropriate'' placements. The NPRM 
proposed that a ``Safe and Appropriate'' placement for an LGBTQI+ child 
would be a placement in which (1) the provider will establish an 
environment free of hostility, mistreatment, and abuse based on the 
child's LGBTQI+ status; (2) the provider is required to be trained on 
the appropriate knowledge and skills to provide for the needs of the 
child related to the child's self-identified sexual orientation, gender 
identity, and gender expression; and (3) the provider will facilitate 
the child's access to age-appropriate resources, services, and 
activities that support their health and well-being. The NPRM further 
clarified that providers would not be required to be ``Safe and 
Appropriate'' as the rule does not compel any particular provider to 
seek a special designation to provide supportive care to LGBTQI+ 
children.
    Comments: Numerous commentors, including those who supported and 
opposed the requirements of the proposed regulation, provided 
recommendations for using clearer terminology in the final rule.
    Some commenters suggested that every child is already entitled to a 
safe and appropriate placement under Federal child welfare law, and 
that the final rule should clarify that this requirement applies to all 
children in foster care, not just to children in specially designated 
placements for LGBTQI+ children.
    A number of commenters were opposed to applying the protections in 
paragraph (a) of the NPRM only to LGBTQI+ children for various reasons, 
including that it could appear that LGBTQI+ children are provided 
protections not guaranteed to others. Another commenter stated that 
there are no other Federal policies that define how a state must 
provide ``safe and proper care'' to children of other unique 
circumstances.
    Many commenters expressed concern with the terminology ``safe and 
appropriate'' placements, interpreting that such a placement was only 
available to LGBTQI+ children. One commenter expressed the belief that 
using the term ``safe and appropriate'' permits the state to place the 
child with caregivers who are merely tolerant of the child's sexual 
orientation or gender identity rather than in a home that is fully 
supportive. Commenters stated the rule does not go far enough to affirm 
children, and that the ``free from hostility, mistreatment, and abuse'' 
threshold was insufficient.
    A number of commenters recommended that the final rule should 
require all placement providers to meet the requirements to be a safe 
and appropriate placement, unless they obtain a waiver based on a 
religious objection. Other commenters argued that unless all placement 
providers are required to be supportive, some LGBTQI+ foster children 
will not receive the benefit of such placements because they are not 
comfortable disclosing their identity to their caseworker.
    Conversely, many commenters wrote that the proposed rule relies on 
a false assumption that only placements that support a child's LGBTQI+ 
identity are safe and proper. A commenter explained that the proposed 
rule would create a two-tiered system for both foster families and 
child-placing agencies in which consideration is given to homes that 
promote a liberal view of sexuality and gender. Commenters stated that 
this could particularly impact providers with religious beliefs and 
viewpoints that oppose same-sex marriage and believe that there are 
only two genders, for example. One commenter stated that, absent clear 
definitions and parameters for a safe home, foster families who hold 
certain religious convictions are at risk of being inappropriately 
deemed unsafe. One commenter stated that a foster family should not 
have to agree with a child's beliefs and that the foster parent's 
belief regarding sexuality and gender identity does not compromise 
their ability to provide safe and appropriate care for non-LGBTQI+ 
children.
    Response: ACF appreciates commenters' views and suggestions. ACF 
agrees that the terminology used in the NPRM, which referred to 
placements that are specially designated for LGBTQI+ children as ``Safe 
and Appropriate,'' needed clarification.
    First, consistent with comments received, ACF confirms that Federal 
law requires all foster care placements to be safe and appropriate. ACF 
did not intend to suggest otherwise with the terminology it used in the 
NPRM. The agency sought to clarify how these Federal statutory 
requirements should be met in the context of LGBTQI+ children who, as 
the preamble to this rule demonstrates, have specific needs related to 
placements and services. One important aspect of a safe and appropriate 
placement for all children is that the placement be free of harassment, 
mistreatment, and abuse, and at 45 CFR 1355.22(a), we have incorporated 
regulatory language

[[Page 34827]]

making clear that this requirement applies to all children in all 
placements, including LGBTQI+ children. We discuss the change to using 
the term ``harassment'' rather than the term ``hostility''--the term we 
had employed in the NPRM--below.
    Second, ACF acknowledges the concerns of commenters that families 
who do not meet or seek to meet specified requirements to serve as a 
designated provider for LGBTQI+ children could be mislabeled as 
``unsafe'' under the terminology of the proposed rule. ACF acknowledges 
the particular concerns of faith-based providers and families of faith 
who serve as foster families. We appreciate the vital role that many 
families and providers of faith play in the child welfare system, and 
ACF is committed to upholding Federal legal protections for religious 
exercise, free speech, or conscience as further discussed in the 
``Response to Comments Raising Statutory and Constitutional Concerns'' 
section of this preamble.
    In response to these concerns, HHS has revised the terminology used 
in the final rule. The rule now uses the phrase ``Designated 
Placements'' as shorthand to refer to providers that are specially 
designated to serve LGBTQI+ children because they have made a set of 
commitments and undergone training to better meet the needs of LGBTQI+ 
children. State and Tribal agencies must have available a sufficient 
number of these placements as part of their responsibilities to satisfy 
the statutory requirement that all children in foster care have access 
to a safe and appropriate placement.
    ACF disagrees with commenters who asserted that placements that 
affirm the identity of LGBTQI+ children are not beneficial for the 
child. As described in the introductory section of this preamble 
addressing Mental Health Needs of LGBTQI+ Youth, an extensive body of 
research consistently shows that when LGBTQI+ youth experience 
supportive environments and services, they experience the same positive 
mental health outcomes as other youth. Further, evidence from studies, 
listening sessions, and Congressional testimony makes clear that many 
LGBTQI+ foster youth do not currently receive placements or services 
that are safe and appropriate, as required by statute. In view of the 
data, ACF disagrees with the commenter's view that supportive 
placements are not necessarily desirable for safe and appropriate 
placement of children.
    Comments: Multiple commenters asked for clarification of what 
specific requirements would apply to placement providers (i.e., foster 
family homes, child care institutions) that do not choose to become 
Designated Placements for LGBTQI+ children. Commenters asked that ACF 
provide examples of what such providers would and would not be required 
to do. For example, some commenters vocalized the importance of 
allowing placement providers to talk with children about their own 
feelings, and to have the ability to offer alternative viewpoints to 
LGBTQI+ children. Conversely, many commenters also suggested that the 
rule be expanded to require that all foster parents should be able to 
meet the needs of any child who enters their home to ensure that all 
children, including those who identify as LGBTQI+, are able to thrive 
in care.
    Response: As noted above, ACF appreciates the opportunity to 
clarify that all children in foster care are entitled to safe and 
appropriate care under Federal law, regardless of whether they are 
LGBTQI+ or not, and if they are LGBTQI+, regardless of whether they are 
in a Designated Placement. Titles IV-E and IV-B of the Act provide 
protections that are designed to ensure that while in foster care, all 
children receive ``safe and proper care'' (Social Security Act section 
475(1)(B), 42 U.S.C. 675(1)(B)). Specifically, as part of its title IV-
E and IV-B plans, an agency must develop a case plan for each child in 
foster care that, among other things, assures that the child receives 
``safe and proper'' care and ``address(es) the needs of the child while 
in foster care'' (Id.). This statutory process includes a ``discussion 
of the appropriateness of the services that have been provided to the 
child under the plan'' (Id.). Similarly, the title IV-E/IV-B case 
review system requires that the agency have procedures for assuring 
that each child has a case plan designed to achieve placements in the 
most appropriate setting available, consistent with the best interests 
and special needs of the child (Social Security Act sections 422(b), 
471(a)(16), 475(1)(B), and 475(5), 42 U.S.C. 622(b), 671(a)16), and 
675(5)). The responsibility to develop and implement foster children's 
case plans lies with the child welfare agency. Child welfare agencies 
assign foster children to placement providers in accordance with their 
case plans. These decisions are individualized and take many aspects of 
a child's circumstances into account. These general protections for 
safe and appropriate foster care placements apply to all placements and 
all children.
    ACF appreciates the opportunity to further clarify what these 
general statutory provisions require. These statutory terms, which 
apply to all placements, at a minimum mean that the placement must be 
free from harassment, mistreatment, and abuse--including related to a 
child's sexual orientation, gender identity, or LGBTQI+ status. In this 
final rule, we use the term ``harassment'' in place of the term 
``hostility'' used in the proposed rule. We agree with the concern, 
articulated by commenters, that the term ``hostility'' is 
insufficiently clear to provide guidance to providers. By using the 
term ``harassment,'' we seek to clarify that the general protections 
focus on the provider's conduct; a provider will not violate this rule 
simply because of the view or beliefs the provider may have or by good-
faith and respectful efforts to communicate with LGBTQI+ children about 
their status or identities. Under its settled meaning in the law, the 
concept of harassment requires conduct that is sufficiently severe or 
pervasive to create an unsafe or hostile environment based on the 
child's characteristics. See, e.g., Oncale v. Sundowner Offshore 
Servs., Inc., 523 U.S. 75, 78 (``When the workplace is permeated with 
discriminatory intimidation, ridicule, and insult that is sufficiently 
severe or pervasive to alter the conditions of the victim's employment 
and create an abusive working environment, Title VII is violated.'') 
(citation omitted).
    Of course, children in foster care are especially vulnerable and 
rely on their providers to provide a supportive and protective 
environment. Protecting LGBTQI+ children from harassment, mistreatment, 
or abuse in all foster care placements is of particular importance 
given the vulnerability of these children. For example, as described in 
the preamble to this rule, a significant body of evidence demonstrates 
a connection between the risk that a LGBTQI+ child will consider or 
attempt suicide and the conduct and treatment of their caregivers 
towards the child's sexual orientation or gender identity. A 2009 study 
cited above showed that ``LGB young adults who reported higher levels 
of family rejection during adolescence were 8.4 times more likely to 
report having attempted suicide [and] 5.9 times more likely to report 
high levels of depression'' compared with children of families of low 
or no such behaviors.\30\ Application of the legal

[[Page 34828]]

definition of harassment must necessarily attend to this context. See 
Oncale, 523 U.S. at 81(1998) (determination of harassment ``requires 
careful consideration of the social context in which particular 
behavior occurs and is experienced by its target'').
---------------------------------------------------------------------------

    \30\ Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009). 
Family rejection as a predictor of negative health outcomes in white 
and latino lesbian, gay, and bisexual young adults. Pediatrics, 
123(1), https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext.
---------------------------------------------------------------------------

    Harassment does not include an isolated hurtful remark or action. 
But it can include deprivation of key resources. See id. at 650-651 
(actionable harassment exists when it keeps ``female students from 
using a particular school resource--an athletic field or a computer 
lab, for instance''). Conduct need not physically deprive an individual 
of such a resource to constitute harassment; harassment includes 
conduct that so undermines and detracts from the victims' . . . 
experience [with the program], that the victim[s] are effectively 
denied equal access to [the program's] resources and opportunities.'' 
Id. at 651.
    Harassment, mistreatment, or abuse of any child in foster care is 
impermissible in any placement. A provider that harasses a child about 
that child's religious beliefs or practices violates the general 
guarantee that all foster placements must be safe and appropriate. 
Similarly, a provider that harasses a child about that child's LGBTQI+ 
status or identity violates the same guarantee.
    In response to commenters who sought clarity about what conduct 
would or would not be permissible in placements that had not sought 
designation as a Designated Placement, ACF appreciates that some 
providers, like some caregivers, parents, and kin, may struggle to 
understand an LGBTQI+ child's identity, or have questions or concerns 
about a child's wellbeing upon learning that a child in their care is 
LGBTQI+. Good-faith and respectful efforts to engage children 
appropriately do not constitute harassment, mistreatment, or abuse. 
However, though the inquiry must be fact specific, providers can cross 
the line into harassment, mistreatment, or abuse if they are found to 
have engaged in behaviors such as punishing the child, subjecting the 
child to harsher rules, or excluding the child from community 
activities because they are LGBTQI+; or disparaging the child, calling 
them shameful, or using slurs or derogatory language because they are 
LGBTQI+. Such conduct can also constitute prohibited retaliation as 
outlined in paragraph (d) of this rule.
    ACF understands that many providers will be learning over time how 
to best engage LGBTQI+ children. As discussed below at Section 
1355.22(b)(3) Placement and Services Decisions and Changes, ACF 
recognizes that some providers may be willing to accept and benefit 
from additional resources and training in order establish a supportive 
environment for an LGBTQI+ child. ACF will provide technical assistance 
and guidance to agencies to support training and resources for 
providers who desire such training. ACF again notes that good-faith and 
respectful efforts to communicate with LGBTQI+ children about their 
status or identity do not constitute harassment, mistreatment, or 
abuse.
    Additionally, consistent with the proposed regulation, this final 
rule requires that the title IV-E/IV-B agency ensure that no LGBTQI+ 
child experience retaliation in any placement, including those that are 
not Designated Placements. Revisions to the rule's nonretaliation 
provisions are described below. Accordingly, if a placement provider 
were to engage in (or attempt to engage in) retaliation against an 
LGBTQI+ child, the title IV-E/IV-B agency must take steps to protect 
the child from such retaliation. Depending on the circumstances and 
child's wishes, those steps could include moving the child to a new 
Designated Placement.
    ACF reiterates that the final rule does not directly regulate the 
actions of individual foster care providers, as title IV-E/IV-B 
agencies are responsible for ensuring that each placement the agency 
makes meets requirements that it is safe and appropriate. As with all 
provisions of this rule, caseworkers who make individualized placement 
decisions about each child in foster care will make case-by-case 
determinations about which placement is in the best interest of the 
child to implement the requirements of Federal statutory protections as 
well as this rule.
    ACF reiterates that this rule does not prohibit individuals and 
organizations from continuing to participate as foster care providers 
if they do not wish to serve as Designated Placements. Although states 
and tribes must have sufficient Designated Placements for LGBTQI+ 
children, the final rule does not require any placement to meet the 
requirements of a Designated Placement. The fact that a given provider 
has not sought to become a Designated Placement is not evidence that 
the provider has engaged in harassment, mistreatment, or abuse. We have 
added a new provision at Sec.  1355.22(j), which states that nothing in 
this rule requires or authorizes a State to penalize a provider in the 
state's titles IV-E and IV-B program because the provider does not seek 
or is determined not to qualify for the status of a Designated 
Placement under this rule.
    Consistent with the NPRM, this rule also requires that placement 
providers who have not chosen to become Designated Placements for 
LGBTQI+ children are informed of the procedural requirements to comply 
with the rule, including the non-retaliation provision, described 
below.
    Comment: Many commenters said the proposed rule did not define the 
terms ``hostility,'' ``mistreatment,'' and ``abuse'' and sought clarity 
on their meaning. One commenter suggested the final regulations provide 
greater specificity about what actions by providers/social workers 
cannot be permitted because they undermine, rather than create safe and 
appropriate spaces for, LGBTQI+ and other children.
    Response: As described elsewhere in this preamble, we are 
clarifying that as part of meeting the requirement to provide a safe 
and appropriate placement for all children in foster care, the title 
IV-E/IV-B agency must ensure that placements, including those for 
LGBTQI+ children, are free from harassment, mistreatment, or abuse. As 
we explain above, we now use the term ``harassment'' in place of the 
term ``hostility'' used in the NPRM in response to requests from 
commenters for greater clarity. Applying the ``harassment, 
mistreatment, or abuse'' test advances the goal of providing a safe 
environment to children while ensuring that agency staff and foster 
care providers will not violate those general protections simply for 
holding any view or belief or for good-faith and respectful efforts to 
communicate with LGBTQI+ children about their status or identity. Since 
those requirements and all of the rule's retaliation requirements apply 
to all foster care placements, they also necessarily apply to all 
placement providers, including Designated Placements. We note, as well, 
that the final rule's non-retaliation provision is not limited to 
providers. Thus, similar actions by caseworkers would also be 
prohibited by this rule. And because the general protections apply to 
all children, this final rule prohibits harassment, mistreatment, or 
abuse even when not directed against a child based on LGBTQI+ status or 
identity. For example, harassment of a child because of their religious 
beliefs or cultural practices would violate those general statutory 
protections. For further discussion of these issues, we refer the 
reader to the beginning of this section.

[[Page 34829]]

    Final Rule Changes: We have revised the final rule so that 45 CFR 
1355.22(a) now provides that as part of meeting the requirement to 
provide a safe and appropriate placement for all children in foster 
care, the title IV-E/IV-B agency must ensure that placements, including 
those for LGBTQI+ children, are free from harassment, mistreatment, or 
abuse.

Section 1355.22(b)(1) Designated Placements and Services for LGBTQI+ 
Children

    The NPRM preamble explained that title IV-E/IV-B agencies should 
have a sufficient number of placements specially designated to serve 
LGBTQI+ children throughout their foster care system to meet the 
requirement of the proposed rule to ensure that a safe and appropriate 
placement is available for and provided to each LGBTQI+ child in foster 
care.
    Comments: Several commenters asked for clarification on preamble 
language regarding ``sufficient placements.'' For the determination of 
``sufficient'' placements, they expressed concern that, in their view, 
the NPRM preamble failed to clearly articulate how agencies must 
determine whether their networks would include enough providers. 
Commenters cautioned that depending on how sufficient numbers are 
calculated, educational continuity and keeping children in their 
communities could be undermined. Commenters also stated the proposed 
rule failed to clarify how different placement types would be factored 
into determinations of sufficient numbers of providers. One commenter 
emphasized the need for geographic representation of placements.
    Response: As noted above, the final rule clarifies that all 
providers must be safe and appropriate for all children. Title IV-E/IV-
B agencies need to have sufficient Designated Placements to be 
responsive to the needs of LGBTQI+ children. Consistent with the 
proposed rule, this final regulation does not prescribe a specific 
number of Designated Placements that will be needed in a given child 
welfare program. Title IV-E/IV-B agencies are in the best position to 
determine the number of such placements that will be required to meet 
their local needs and comply with this regulation. Accordingly, the 
regulation does not mandate a specified number of placements, but 
rather mandates what the title IV-E/IV-B agency must do to provide 
access to Designated Placements. The title IV-E/IV-B agency will need 
to determine the number of placements needed to meet these 
requirements. In recognition of the diversity of programs and local 
contexts across the Nation, we are not seeking to establish a uniform, 
standard requirement that applies to all jurisdictions and populations. 
Each state and tribe is unique and best suited to identify their 
placement needs and how to meet the provision in the final rule based 
on considerations such as variation in population; geographical 
disbursement including rural, remote, and urban populations; and the 
number of children in need of foster care placements, among other 
consideration. ACF encourages agencies to use data, modeling, and case 
work to estimate how many Designated Placements may be needed. ACF will 
provide further technical assistance to states and tribes to help them 
achieve this requirement. As we discuss below, this final rule 
clarifies that nothing in this rule shall be construed to require or 
authorize a state or tribe to penalize a provider in the title IV-E and 
IV-B program because the provider does not seek or is determined not to 
qualify as a Designated Placement under this rule.
    The final rule also clarifies the requirements for a placement to 
be considered a Designated Placement for LGBTQI+ children. First, in 
addition to the protections generally applicable, the provider must 
commit to establish an environment that supports the child's LGBTQI+ 
status or identity. We have added the term ``commit'' to reflect that 
assent to this designation will be documented by title IV-E/IV-B 
agencies and in recognition that current placements, working toward 
designation as part of a placement stabilization plan, may express 
their commitment while working to establish the environment as 
described in the rule. The criteria for Designated Placements include 
provider training as discussed below. Finally, a Designated Placement 
must facilitate the child's access to age- or developmentally 
appropriate resources, services, and activities that support their 
health and well-being.

Provider Training for Designated Placements

    The proposed rule clarified that for a placement to be considered 
specially designated for an LGBTQI+ child, the provider must be 
``trained to be prepared with the appropriate knowledge and skills to 
provide for the needs of the child related to the child's self-
identified sexual orientation, gender identity, and gender 
expression.'' In the NPRM, we requested comments on how ACF can ensure 
training curriculums for foster care providers are of high quality.
    Comment: Many commenters responded with recommendations on how ACF 
can ensure training curricula for foster care providers are of high 
quality. Many commenters recommended ACF work with LGBTQI+ youth with 
lived experience and other experts in the community to develop core 
elements that should be presented in high quality trainings. One 
commenter recommended that trainings and measures of success should be 
reviewed and evaluated by LGBTQI+ youth with lived experience. Several 
commenters recommended ACF ensure trainings are certified by 
organizations with experience serving LGBTQI+ children. One commenter 
recommended ACF develop a set of guidelines for placement providers' 
trainings to ensure the trainings address a robust set of topics. One 
commenter recommended ACF create a few standards for key concepts that 
must be included in trainings, at minimum, and discuss how to create 
supportive and inclusive environments for all sexual orientations and 
gender identities. The commenter also recommended trainings provide 
strategies on how to ask and respond to questions around these topics 
in a respectful way and that therapists who work with LGBTQI+ youth in 
care should provide evidence-based services and care. One commenter 
recommended all training include information about the critically 
important role of faith for the mental health of LGBTQI+ youth and that 
ACF should urge states to approve diverse training options, including 
at least one approved training sequence designed by and for 
theologically conservative faith-based providers. Several commenters 
recommended provider training should be offered annually for new 
resource families or as an opportunity for a training ``refresher'' and 
ideally should be coupled with coaching opportunities to reinforce 
training content. One commenter recommended training modules be updated 
and provide for recurring trainings as the agency best sees fit and 
that ACF should put in place a system to implement a data check to 
understand the effectiveness of these training programs. Several 
commenters recommended ACF highlight programs that have been developed 
to work with existing resource families and recommend that States 
provide similar programs to placement providers who are assessed as not 
yet supportive to LGBTQI+ children. One commenter recommended ACF 
should provide specific funding and grant opportunities to assist 
states and tribes to provide appropriate

[[Page 34830]]

training pertaining to LGBTQI+ children in foster care.
    Many commenters had suggestions about foster care provider 
training, such as requiring that providers receive relevant trainings 
and resources that enable and empower them to care for LGBTQI+ 
children; agencies offer the same provider training requirements for 
kinship caregivers, and offer expanded provider training to ensure that 
all kinship and foster caregivers are equipped to be safe and 
appropriate, regardless of the child's sexual orientation or gender 
identity; and incentives are offered to agencies using evidence-based 
trainings. Another commenter said that being designated to provide care 
for LGBTQI+ children should not be solely defined by the receipt of 
specific provider training and instead be determined by an ability and 
willingness of the caregiver to meet the child's needs. Commenters also 
requested clarity on what constitutes ``appropriate knowledge'' and 
``skills,'' recommending ACF work with faith-based groups on provider 
training development, while others suggested not to be overly specific. 
Other commenters disagreed saying that there is no ``official federal 
training available'' for providers and that since foster care training 
curriculum are administered by state and county authorities, enforcing 
specific provider training requirements would violate individual state 
statues. Other commenters suggested adding information about 
professional standards as part of the provider training requirement.
    One commenter suggested expanding the rule to include training for 
all service providers, including attorneys and guardians ad litem.
    Response: We considered all of the recommendations and comments. We 
have revised the final rule in paragraph (b)(1)(ii) to add additional 
specificity to the training for foster care providers. In addition to 
requiring the training to reflect evidence, studies, and research about 
the impacts of rejection, discrimination, and stigma on the safety and 
wellbeing of LGBTQI+ children, the final rule also requires the 
training to provide information for providers about professional 
standards and recommended practices that promote the safety and 
wellbeing of LGBTQI+ children. Those recommended practices should 
reflect evidence-based supportive behaviors shown to improve health and 
other outcomes for LGBTQI+ children and exclude behaviors shown to lead 
to poor health outcomes for LGBTQI+ children. ACF acknowledges that 
training materials could be improved through engagement with people 
with lived experience, and strongly encourages title IV-E/IV-B agencies 
to do so, though we have not chosen to make it a requirement. So long 
as the requirements in this final rule are satisfied, ACF will defer to 
states and tribes on how to best incorporate these additional 
requirements into their training. ACF will provide technical assistance 
to help agencies implement this requirement.
    The final rule does not extend these training requirements in 
paragraph (b)(1)(ii) beyond the foster care provider, as the training 
is focused on becoming a Designated Placement for a child. ACF 
acknowledges title IV-E/IV-B agencies should offer training and 
services to kinship caregivers and foster families that opt to become 
Designated Placements for LGBTQI+ children, particularly those 
currently placed with them. The final rule in Sec.  1355.22(b)(2) 
states that services and training can be offered to current providers, 
including kin, to help them become a Designated Placement if they wish 
and thus promote sibling unification, and retaining sibling, kinship, 
family, and community ties. ACF acknowledges that training on 
supportive services for LGBTQI+ children could be beneficial for 
guardians ad litem and attorneys. However, requirements for training 
attorneys are beyond the scope of this rule.

Other Comments on Designated Placement Requirements

    Comment: One commenter wanted the rule to more clearly specify who 
is included in the term placement provider.
    Response: Placement providers are foster family homes, child care 
institutions, or other facilities that provide foster care to children, 
consistent with the definition of foster care at 45 CFR 1355.20.
    Comment: One commenter requested clarification on whether short-
term, emergency placements are exempt from the Designated Placement 
requirements for an LGBTQI+ child if a designated provider is 
unavailable. One commenter expressed the need to afford flexibility for 
states to offer exceptions or alternatives for LGBTQI+ children placed 
with kin caregivers when it is in the best interest and desire of an 
LGBTQI+ child.
    Response: The issues raised by the commenters regarding short-term 
or emergency placements are related to agency decision making and 
provider licensing which are determined at the local level. State and 
Tribal title IV-E/IV-B agencies that have placement and care 
responsibility of children who are in foster care have the authority to 
make placement decisions for the child. In doing so, they must consider 
the Federal statutory and regulatory requirements for foster care 
placements and must balance all of these factors in making a placement 
decision on a case-by-case basis. This requirement includes relative 
placement preferences, jointly placed sibling placement requirements, 
least restrictive placement requirements, and requirements for 
placements in close proximity to the parent's home and the child's 
school of origin. However, we are not revising the final rule to 
provide specific exemptions. ACF encourages title IV-E/IV-B agencies to 
work with foster care placement providers who wish to become Designated 
Placements, including relative placements to build their capacity to 
provide such placements through coaching, training, and education. As 
noted above, ACF encourages agencies to use case work, data, and 
modeling to ensure that there are enough placements as needed in 
specific geographic areas, which will help ensure that children are 
placed in proximity to the parent's home and child's school of origin. 
Ensuring adequate numbers of Designated Placements will also help 
increase the likelihood that LGBTQI+ children will be placed with 
siblings.
    Comment: Several commenters had suggestions or requested 
clarification regarding the terms used in this provision of the NPRM. 
Several organizations suggested using the term ``developmentally 
appropriate'' instead of ``age-appropriate.''
    Response: We agree with commenters that in addition to age-
appropriate resources, services and activities, a child should have 
access to developmentally appropriate resources, services, and 
activities. Therefore, we are revising the final rule to read ``age- or 
developmentally- appropriate.'' This is to be consistent with the 
definition in section 475(11)(A) of the Act (Social Security Act 
Section 475(11)(A), 42 U.S.C. 675(11)(A)).
    Final Rule Changes: The final rule provides requirements for a 
placement to be considered a Designated Placement, which goes beyond 
the general protection of an environment free of harassment, 
mistreatment, and abuse, which is now described as safe and 
appropriate. To be considered Designated, a placement must meet the 
criteria described in Sec.  1355.22(b)(1).

[[Page 34831]]

Section 1355.22(b)(2) Process for Notification of and Request for 
Designated Placements

    Section 1355.22(b)(2) describes the process the title IV-E/IV-B 
agency must implement to notify an LGBTQI+ child that they may request 
a Designated Placement or request that services be offered to their 
current placement to become a Designated Placement. In the NPRM, where 
the provision to request a placement for an LGBTQI+ child was located 
at Sec.  1355.22(a)(2), ACF proposed that title IV-E/IV-B agencies must 
implement a process by which a child identifying as LGBTQI+ may request 
a placement specially designated as meeting specified requirements for 
LGBTQI+ children, and that the title IV-E/IV-B agency must consult with 
such child to provide an opportunity to provide input into that 
placement. The NPRM proposed that this process must safeguard the 
privacy and confidentiality of the child. It also proposed to require 
that title IV-E/IV-B agencies notify all children over the age of 14 
that specially designated placements for LGBTQI+ children are 
available, as well as providing such notification to children under the 
age of 14 who have been removed from their home due to familial 
conflict about their LGBTQI+ status, and children who have disclosed 
their LGBTQI+ identity or whose LGBTQI+ identity or status is known to 
the agency. The NPRM further proposed that the notice should be 
provided in an age-appropriate manner both verbally and in writing, and 
that the notice must inform the child about how they request a safe and 
appropriate placement.

Notification Requirements--Frequency, Age, and Developmental-
Appropriateness

    Comment: Many commenters provided recommendations on how often the 
agency must provide the child notification and recommended providing 
multiple notifications to children. Suggestions included providing 
notice at least two times a year; continuously; at regular intervals; 
and no less than twice per year. One commenter stated that children 
should be notified within 72 hours of entering foster care that having 
a safe and appropriate foster placement is a right. They also 
recommended that youth should acknowledge receipt of rights at case 
hearings and placement changes and that rights be publicly posted in 
congregate care facilities, and accessible to youth in foster homes.
    Response: There are existing mandated requirements for agencies to 
provide care and services to children in foster care. This includes 
conducting an initial case plan within 60 days of a child's removal and 
conducting monthly home visits with the child. These are opportunities 
that agencies already have in their ongoing work that will allow them 
to provide proper notifications in accordance with the rule; while the 
rule specifies information that must be included in the notice, 
agencies are not required to establish a new process to notify children 
that Designated Placements are available. ACF intends to clarify 
opportunities to ensure children are informed through technical 
assistance. We encourage agencies to use all opportunities available to 
ensure children are well informed. Therefore, we have determined not to 
make these changes in the final rule. However, ACF takes this 
opportunity to clarify that in response to comments about enforcement 
of the rule's provisions, the final rule provides for the notification 
requirement to be monitored through the CFSRs, a formal monitoring 
protocol in which the state's efforts to comply with title IV-E and IV-
B program requirements are assessed at the case and systems level. This 
change is discussed below under Section 1355.34(c) Criteria for 
Determining Substantial Conformity.
    Comment: Numerous commenters recommended that the notice of 
availability of safe and appropriate placements should be provided to 
all children regardless of age, rather than the age of 14 as specified 
in the NPRM. One organization commented that notice at age 14 is too 
late and should be provided at an earlier age. Another suggested 
varying ages at which to begin offering notifications.
    Response: ACF appreciates the comments about the importance of 
providing notification to children. In the final rule, ACF has kept the 
age requirement for notification to all children 14 and over, in 
alignment with the existing case plan requirement in section 475(1)(B) 
of the Social Security Act.
    Moreover, in addition to requiring agencies to notify all children 
age 14 and over, the final rule also requires agencies provide notice 
about Designated Placements to those under age 14 who are removed from 
their home due, in whole or part, to familial conflict about their 
sexual orientation, gender identity, gender expression or sex 
characteristics; have disclosed their LGBTQI+ status or identity; or 
whose LGBTQI+ status or identity is otherwise known to the agency. It 
also requires that the title IV-E/IV-B agency ensure that LGBTQI+ 
children have access to age- or developmentally appropriate services 
that support their needs related to their sexual orientation and gender 
identity or expression. This includes clinically appropriate mental and 
behavioral health care supportive of their sexual orientation and 
gender identity and expression as needed. Comment: Many commenters 
recommended that the NPRM requirement for the written and verbal notice 
to be provided in an ``age-appropriate'' manner be revised. They 
recommended that age appropriate be changed to ``developmentally 
appropriate.''
    Response: We agree with commenters that in addition to providing 
written and verbal notice in an age-appropriate manner, the notice 
should also be provided in a developmentally appropriate manner. 
Therefore, we are revising the final rule to read ``age- or 
developmentally appropriate.'' This is to be consistent with the 
definition in section 475(11)(A) of the Social Security Act, 42 U.S.C. 
675(11)(A).

Requested Placements

    Comment: A number of commenters stated that while the NPRM proposed 
that the agency must notify the child specified in the NPRM that a safe 
and appropriate placement was available, they understood it as written 
that a safe and appropriate placement is only available if the child 
requested the placement. Some commenters indicated that this would be 
too heavy a burden on the child to self-identify and to initiate the 
request, which would exacerbate negative health outcomes for these 
children. One commenter recommended removing all of paragraph (a)(2) in 
the NPRM because if all placements are safe and appropriate as 
required, there would be no need to request one, and others commented 
that they support this section as proposed.
    Response: As we have previously discussed, the final rule expressly 
provides that all placements, including placements for LGBTQI+ 
children, must be safe and appropriate. However, we have clarified that 
because not all placements will be Designated Placements, the rule 
provides for a process by which a Designated Placement may be offered 
or requested. HHS intends that there are multiple processes through 
which Designated Placements may be provided to an LGBTQI+ child, 
including when initiated by a child's request.
    Final Rule Changes: The final rule provides for a process by which 
an LGBTQI+ child may request a Designated Placement or request that

[[Page 34832]]

their current placement be offered services. The final rule maintains 
the proposed rule's minimum age of notification of 14 and over, and 
continues to require agencies to provide notice about Designated 
Placements to those under age 14 who are removed from their home due, 
in whole or part, to familial conflict about their sexual orientation, 
gender identity, gender expression, or sex characteristics; have 
disclosed their LGBTQI+ status or identity; or whose LGBTQI+ status or 
identity is otherwise known to the agency. In addition, the final rule 
adds a requirement that the notice given to children must also inform 
the child of non-retaliation protections and the process whereby a 
child may report concerns about retaliation.

Section 1355.22(b)(3) Placement and Services Decisions and Changes

    Comments: A number of commenters raised concerns about the impact 
that they believed the proposed regulations would have on the placement 
stability of LGBTQI+ youth. One commenter raised a concern that if only 
some foster care providers are designated safe and appropriate for 
LGBTQI+ children, it may result in decreased placement stability for 
LGBTQI+ children. Other commenters stated that the result of an LGBTQI+ 
child requesting a placement that affirms their identity will be to 
move to another provider, and that such placement changes cause 
upheaval and trauma for children. Some commenters said that LGBTQI+ 
youth, especially those who are in placements with their siblings, 
would avoid requesting Designated Placements for fear of being 
separated from their siblings, community, or school.
    Response: ACF agrees that placement stability is a vitally 
important component of a youth's experiences and outcomes in foster 
care, and that placement stability is impacted by a foster care 
provider being able to meet a child's individual needs. ACF further 
acknowledges that research shows that LGBTQI+ youth in the child 
welfare system have lower levels of placement stability compared with 
other youth.\31\
---------------------------------------------------------------------------

    \31\ Wilson, B.D.M., & Kastanis, A.A. (2015). Sexual and gender 
minority disproportionality and disparities in child welfare: A 
population-based study. Children and Youth Services Review, 58, 
Pages 11-17, ISSN 0190-7409, https://doi.org/10.1016/j.childyouth.2015.08.016. Poirier, J., Wilkie, S., Sepulveda, K & 
Uruchima, T., Jim Casey Youth Opportunities Initiative: Experiences 
and Outcomes of Youth Who Are LGBTQ, 96.1 Child Welfare, 1-26 
(2018), https://www.proquest.com/docview/2056448464.
---------------------------------------------------------------------------

    In response to concerns about placement stability, we note first 
that the placement stability of LGBTQI+ youth will be positively 
impacted by a title IV-E/IV-B agency's success in ensuring there are 
sufficient Designated Placements to meet the needs of LGBTQI+ youth. As 
clarified in the NPRM, IV-E agencies may claim Federal funds under 
title IV-E for certain activities to comply with this rule, including 
recruiting and training providers to be Designated Placements.
    ACF further acknowledges that one consequence of an LGBTQI+ child 
requesting a Designated Placement may be a move to a new placement and 
that in certain instances, the child's first preference may not be a 
change in placement but rather that steps be taken to make the current 
placement more supportive of the child's LGBTQI+ status or identity. 
Accordingly, we revised the final rule in several important ways.
    First, we have made clarifications at Sec.  1355.22(b)(2) related 
to notification requirements. In addition to the requirement that title 
IV-E/IV-B agencies implement a process under which a child may request 
a Designated Placement, this final rule further requires that this 
process also enables a child to request services for a current 
placement to receive services to become supportive. Agencies must 
provide notice that the child can request a placement change or 
services for a current placement, and the process the agency will use 
for responding to the request. The final rule also clarifies that the 
title IV-E/IV-B agency's process for considering such a request must 
provide the child with an opportunity to express their needs and 
concerns.
    Second, we have added a new section at Sec.  1355.22(b)(3) which 
provides further clarity on how the title IV-E/IV-B agency should reach 
placement and services decisions. The final rule clarifies that when 
making placement and service decisions related to an LGBTQI+ child, the 
title IV-E/IV-B agency shall give substantial weight to the child's 
expressed concerns or requests when determining the child's best 
interests. As noted in the final regulatory text, placement decisions 
should give substantial weight to the child's requests; determining a 
child's best interests will require that the title IV-E/IV-B agency 
engage directly with the child to understand their needs and concerns.
    The final rule further provides that, to support placement 
stability, when a request for a placement change or services is made, 
the title IV-E/IV-B agency must first determine whether actions could 
be taken to support the current provider in voluntarily meeting the 
conditions of a Designated Placement, and if the provider is willing to 
meet the conditions of a Designated Placement, requires that the title 
IV-E/IV-B agency use the case review process to regularly review the 
provider's compliance in providing a supportive environment. We believe 
this clarification in the final rule will allow more LGBTQI+ children 
to be safely served in their current placement.
    Under these revised provisions, if an LGBTQI+ child expressed their 
preference to receive a Designated Placement, but their current 
provider had not sought to become a Designated Placement provider, the 
title IV-E/IV-B agency would be required to consider whether actions 
could be taken to support the current provider in meeting the 
conditions of a Designated Placement to maintain the child's placement 
stability, if the provider wishes to become such a placement. For 
example, the current placement provider could be offered the 
opportunity to receive the training needed to become a Designated 
Placement to better meet the needs of the LGBTQI+ child. Other steps to 
promote placement stability could include--consistent with child's best 
interests and the willingness of the provider--more regular visits by 
the caseworker, or counseling for the child alone or in conjunction 
with the placement provider to address any challenges.
    As noted throughout this rule, we reiterate that nothing in this 
rule compels any provider to seek to become a Designated Provider. In 
the case of a provider who is not interested in becoming a Designated 
Placement for an LGBTQI+ child currently in their care, the title IV-E/
IV-B agency could meet the child's needs by placing the child with a 
Designated Placement provider or, consistent with the child's 
preference for placement stability and the agreement of the current 
provider, by providing training and services necessary to make the 
current placement more supportive. To further support the placement 
stability of LGBTQI+ children, we reiterate that this rule's 
prohibition on retaliation encompasses unwarranted placement changes 
for a child because of their LGBTQI+ status or identity.
    Compliance with some requirements of this rule will be assessed 
through the CFSRs and all requirements are subject to the partial 
review process. In pertinent part, the CFSRs assess the degree to which 
States have the necessary array of placement options available to serve 
the needs of all children who come into their care. The

[[Page 34833]]

reviews also assess state performance in ensuring placement stability.

Section 1355.22(c) Process for Reporting Concerns About Placements and 
Concerns About Retaliation

    Section 1355.22(3) of the proposed rule described the process the 
agency must implement for LGBTQI+ children to report concerns about a 
placement that does not meet the requirements of this rule and concerns 
about retaliation. The NPRM proposed to require that title IV-E/IV-B 
agencies implement a process for LGBTQI+ children to report concerns 
about any placement that fails to meet the requirements of a placement 
that is specially designated for LGBTQI+ children. The NPRM proposed 
that this process must safeguard the privacy and confidentiality of the 
child. Like the requirement that certain children be notified that 
specially designated placements for LGBTQI+ children are available, the 
NPRM proposed that the same children be notified verbally and in 
writing about the process to raise concerns about a placement. Finally, 
the NPRM proposed to require that IV-E agencies ``respond promptly'' to 
a child's reported concern, consistent with the agency's timeframes for 
investigating child abuse and neglect reports, depending on the nature 
of the child's report.
    Comment: Several commenters expressed their views on how an agency 
should respond to the child's placement concerns, when to make a 
placement change, and foster family home licensing considerations, such 
as placing the license on a hold while the family engages in training 
and is reassessed.
    Response: State and Tribal title IV-E/IV-B agencies have placement 
and care responsibility for children who are in foster care, and this 
allows such agencies to make placement decisions for each child on a 
case-by-case basis. In reference to whether there should always be a 
placement change when a child expresses a concern, we want to clarify 
that, absent a safety concern or the specific desires of the child, 
placement changes should not necessarily be the first course of action. 
As noted above, the final rule requires that before initiating any 
placement changes, the title IV-E/IV-B agency must consider whether 
additional services and training would allow the current provider to 
meet the conditions for a Designated Placement, and whether the current 
provider is willing to meet the conditions of a Designated Placement. 
Thus, with the child's consent and subsequent agreement by the 
provider, we encourage the agency to offer the foster care provider 
supports including training, coaching, and information to enable the 
provider to provide an affirming home for the child. This approach 
should be prioritized when a child wishes to remain in their placement 
for reasons of sibling unification, proximity to family and community 
of origin and schools, wish to remain in a family-like setting, or 
generally to avoid placement disruption. Where caregivers agree to 
accept such services and training, we encourage agencies to work in an 
ongoing way to build caregivers' capacity to provide this kind of care 
for LGBTQI+ children.

Prompt Response to Concerns

    In the NPRM, we requested public comment on whether and how best to 
define ``promptly'' as applied to the requirement at proposed paragraph 
(a)(3)(iii) that an agency respond promptly to a child's reported 
concerns.
    Comment: Many commenters offered suggestions on how to define 
``promptly'' as it applies to this paragraph. Many commenters responded 
with several suggestions recommending ``promptly'' be defined as 
immediate and that these instances should be investigated sooner than 
current agency timelines for investigating reports of abuse or neglect. 
Many included a timeframe for response in their recommendation to occur 
within two hours to 24 hours. Several expressed that any reported 
concerns should be handled with urgency as the LGBTQI+ population is 
already identified in the rule as having significant risk. Other 
commenters recommended ACF not define the term, leave flexibility to 
states to define it, and suggested that these requests be handled by an 
independent entity, such as an ombudsman.
    Response: ACF has reviewed all of the suggestions, and, while we 
appreciate the comments, we are not defining ``promptly'' in the final 
rule. ACF is not mandating a uniform timeframe for agencies to respond 
to a placement concern as that would be unnecessary when agencies 
already have established protocols to respond to reports of child abuse 
and neglect investigations. As such, the title IV-E/IV-B agency will 
determine the timeframe for responding promptly to a child's report 
consistent with their existing timelines for agency child abuse and 
neglect reporting and investigating procedures commensurate with the 
seriousness of the child's concern. When there is reasonable cause to 
believe that a child is in imminent danger, most agencies require 
investigations to be initiated immediately, in as little as two hours 
and not longer than 24 hours, after the report is made. As part of its 
existing monitoring process, ACF may evaluate whether a title IV-E/IV-B 
agency is responding to all concerns promptly, including that those 
raised by LGBTQI+ children are responded with the same level of 
promptness as it responds to other comparable concerns. While this 
final rule does not dictate a timeline for response, a title IV-E/IV-B 
agency that treated concerns raised by LGBTQI+ children about the 
safety of their placements with lesser priority than concerns raised by 
other youth may be subject to the partial review process to determine 
compliance with this requirement.

Other Comments on Reporting Concerns About a Placement

    Comment: Several commenters suggested that ACF monitor and enforce 
these provisions for responding to placement concerns to the maximum 
extent possible.
    Response: These provisions in the final rule are monitored as part 
of the partial review process. This means that if ACF becomes aware of 
a potential non-compliance issue with the provisions in Sec.  1355.22, 
it will initiate a ``partial'' review, which is a review of state and 
tribal title IV-E/IV-B plan requirements (45 CFR 1355.33(e)). If there 
is evidence of non-conformity identified through the partial review 
process, the state/tribal title IV-E/IV-B agency will be required to 
enter into a program improvement plan and make necessary changes to 
come into compliance. Therefore, since there is already an established 
protocol for monitoring, no changes to the final rule are warranted.
    Comment: Several commenters recommended adding a requirement to 
engage LGBTQI+ youth with lived experience in process development. One 
commenter recommended that it should be required for agencies to have 
an independent forum for reporting, investigating, and resolution of 
reported concerns, such as a Foster Care Ombudsman. One commenter 
recommended that agencies provide updates about the ``investigation'' 
to youth and allow options for ongoing communication to keep youth 
updated such as phone call or email.
    Response: We considered these comments and determined to retain the 
provision as proposed in the NPRM to allow agencies to design their 
notification processes. Instead, technical assistance is available to 
states and tribes as warranted in implementing in a manner consistent 
with best practices, including by engaging youth with lived

[[Page 34834]]

experience. Therefore, we are not making changes to the final rule.
    Comment: Many organizations recommended adding that the written and 
verbal communication needed to be developmentally appropriate, rather 
than age appropriate.
    Response: We agree with commenters that in addition to 
developmentally-appropriate services, a child should have access to 
developmentally-appropriate communications. Therefore, we are revising 
the final rule to read that ``notice must be provided in an age- or 
developmentally appropriate manner, both verbally and in writing.'' 
This is to be consistent with the definition in section 475(11)(A) of 
the Social Security Act, 42 U.S.C. 675(11)(A).
    Final Rule Changes: As part of the final rule, ACF clarifies that, 
absent a safety concern or the specific desires of the child, placement 
changes should not necessarily be the first course of action. The final 
rule requires the process for reporting concerns about a child's 
placement also include reports about retaliation. In addition, it adds 
that a child should receive developmentally-appropriate notice both 
verbally and in writing of the process for reporting concerns about a 
placement or retaliation.

Section 1355.22(d) Retaliation Prohibited

    In the proposed rule, ACF proposed to require that title IV-E/IV-B 
agencies must have a procedure to ensure that no LGBTQI+ child in 
foster care experiences retaliation for disclosing their LGBTQI+ 
identity, for requesting a specially designated placement for LGBTQI+ 
children, or for reporting concerns that their current placement does 
not meet their needs related to being LGBTQI+. The proposed rule 
described examples of what would be considered retaliatory under the 
rule.
    Comment: Many commenters strongly supported the NPRM's prohibition 
on retaliation and said that such protections were important for the 
safety, health, and wellbeing of LGBTQI+ children who face heightened 
risks when they disclose their sexual orientation or gender identity.
    Other commenters raised concerns about the retaliation prohibition 
and said that religious providers could be accused of retaliation for 
merely disagreeing with a child's sexual orientation or gender 
identity. As discussed in Section IV, a couple of commenters asserted 
that concepts included in the proposed rule that relate to a child's 
identity place individuals and organizations of faith at risk of being 
accused of retaliation that would unconstitutionally infringe on their 
free exercise of religion.
    Response: ACF appreciates commenters' views on the rule's 
prohibition on retaliation. We agree with commenters who observed that 
LGBTQI+ children are particularly vulnerable to retaliation when their 
sexual orientation or gender identity is disclosed. We also acknowledge 
the concerns of some providers who worried about being accused of 
retaliation when engaged in conduct related to their faith or beliefs. 
As we address more fully below in our response to the First Amendment 
and Religious Freedom comments, ACF is committed to upholding Federal 
protections for free speech, religious exercise, and conscience for all 
providers and children in the child welfare system. In particular, we 
have developed this rule in a manner that respects these guarantees. 
The Department will apply Federal protections for religious exercise, 
free speech, and conscience, including by applying the Department's 
regulatory protections for seeking religious accommodations.
    In response to requests for clarification, we are first more 
clearly specifying the actions for which retaliation is impermissible. 
The proposed rule had referred to retaliation for the child disclosing 
their LGBTQI+ identity; requesting a placement specially designated for 
LGBTQI+ children (which the final rule now refers to as Designated 
Placement); or for reporting concerns about the safety and 
appropriateness of their current placement. To this list, the final 
rule makes clear that the intended reference is to both LGBTQI+ status 
and identity, and further specifies that retaliation is impermissible 
for having a child's LGBTQI+ status or identity disclosed by a third 
party; for the child being perceived to have an LGBTQI+ status or 
identity; or for the child's request or report related to requirements 
for placements or services.
    The proposed rule had specified that retaliation includes 
unwarranted placement changes including unwarranted placements in 
congregate care facilities; restriction of access to LGBTQI+ peers; or 
attempts to undermine, suppress, or change the sexual orientation or 
gender identity of a child; or other activities that stigmatize a 
child's LGBTQI+ identity. In response to commenters' requests for 
greater clarity on what actions would constitute retaliation, the final 
rule provides additional detail about such actions and how they 
interact with other provisions of the rule, such as the prohibition on 
harassment, mistreatment, or abuse in all foster placements.
    Comment: Some commenters expressed concern that, in their opinion, 
the proposed rule did not provide sufficient reassurance that LGBTQI+ 
children would be protected from retaliation, whether for disclosure of 
their status or identity, requesting a new placement, or reporting a 
placement that is not safe and appropriate. One commenter expressed 
concern that absent Federal protections ``caseworkers could further 
harm children by engaging in discriminatory behavior,'' and shared the 
example of a caseworker blaming a child for mistreatment they 
experienced as a result of their status or identity. This commenter was 
also concerned that the rule ``fails to protect all families, including 
kin, and current and prospective foster and adoptive parents'' from 
discrimination in their interactions with the child welfare system. 
Finally, this commenter noted that absent Federal protections, 
officials might use retaliatory child protection investigations, such 
as a state investigating a parent because of bias toward the child's or 
the parent's disclosed or perceived identity or status.
    Response: We agree with commenters that it is important that 
children have strong protections against retaliation for having 
disclosed their LGBTQI+ identity or status and having requested a new 
placement or reporting a placement that is not safe and appropriate. As 
a result, we have made several adjustments in the final rule.
    First, we specify in paragraph (d)(2)(v) that the title IV-E/IV-B 
agency will be considered to have retaliated against a child if it uses 
information about the child's LGBTQI+ identity or status to initiate or 
sustain a child protection investigation or discloses information about 
the child's LGBTQI+ identity or status to law enforcement in any manner 
not permitted by law. While both of these actions already fall under 
the definition of retaliation in paragraph (d)(2)(iv), which includes 
``disclosing the child's LGBTQI+ status and/or identity in ways that 
cause harm or risk the privacy of the child,'' we believe it is 
appropriate to name these actions directly in order to give assurance 
to LGBTQI+ children that such actions are not allowable.
    Second, in paragraph (d)(2)(vi), we clarify that the prohibition on 
retaliation includes retaliation against current or potential 
caregivers (including foster parents, pre-adoptive parents, adoptive 
parents, kin caregivers, and birth families) for supporting a child's 
LGBTQI+ status or identity. We believe

[[Page 34835]]

this is necessary to ensure that children can benefit from the 
protections of this rule, as we are concerned that retaliation against 
a supportive adult could be used in an effort to prevent or discourage 
an LGBTQI+ child from requesting or receiving a Designated Placement or 
necessary services. While we do not define all of the actions that 
could constitute ``retaliation'' in this context, as it may vary 
significantly depending on circumstances, we understand it to mean any 
harmful action taken against a current or potential caregiver for an 
LGBTQI+ child because of their support of that child's LGBTQI+ identity 
or status.
    Third, Sec.  1355.22(b)(3)(iii) of the final rule includes a 
requirement that children receiving notice of the availability of 
Designated Placements also be provided notice of the retaliation 
protections in this final rule and describe the process by which a 
child may report a concern about retaliation. The title IV-E/IV-B 
agency must provide this information in an age- and developmentally 
appropriate manner, verbally and in writing, and must safeguard the 
confidentiality of the child. At a minimum, the agency must provide the 
notice about this process to: (1) all children age 14 and over, and (2) 
children under age 14 who have been removed from their home due to 
familial conflict about their sexual orientation, gender identity, 
gender expression or sex characteristics or have disclosed their 
LGBTQI+ status and/or identity, or it is otherwise known to the agency. 
In addition, the agency must respond promptly to the child's concerns, 
consistent with the agency's timeframes for investigating child abuse 
and neglect reports.
    Finally, in response to comments raising concerns about enforcement 
of these provisions and safeguards on keeping a child free from 
retaliation, ACF welcomes the opportunity to clarify that state 
agencies' compliance with the final rule's requirements will be 
monitored by CB through the CFSRs, a formal monitoring protocol in 
which the state's efforts to comply with title IV-E and IV-B program 
requirements are assessed at the case and systems level.
    Comment: Several commenters recommended that the provision be 
expanded to all children in foster care to ensure no child experiences 
retaliation. One commenter recommended modifying the final rule to 
include a prohibition on retaliation of the disclosure of the child's 
LGBTQI+ ``status'' in addition to the child's identity.
    Response: We agree with commenters that retaliation against any 
child because of their characteristics or identity is harmful and 
impermissible. For example, title VI of the Civil Rights Act of 1964, 
which prohibits all recipients of Federal financial assistance from 
discriminating on the basis of race, color, or national origin, 
specifically prohibits retaliation against anyone seeking to vindicate 
a right under that law. This prohibition includes discrimination and 
retaliation against children based on their shared ancestry or ethnic 
characteristics, including children who are perceived to be Jewish, 
Christian, Muslim, Sikh, Hindu, or Buddhist, or of another religious 
group, if the discrimination is based on their ancestry or ethnic 
characteristics. The purpose of this rule is to clarify the specific 
protections necessary for LGBTQI+ youth to receive safe and proper care 
in an appropriate placement. In particular, safe and proper care for 
LGBTQI+ youth requires that no child in foster care experiences 
retaliation as a result of their LGBTQI+ status or identity or for 
being perceived to have an LGBTQI+ status or identity. This intent is 
reflected in the current text of the final rule.
    Comment: One commenter recommended modifying the final rule to 
include that a child should not experience retaliation if an LGBTQI+ 
child's identity is disclosed by a ``third party.''
    Response: We agree with the commenter and modified the final rule 
to ensure a child does not experience retaliation as a result of 
disclosure of an LGBTQI+ child's identity or status by a third party. 
As such, the provision now includes a prohibition on retaliation 
whether the child or a third party discloses the LGBTQI+ child's status 
or identity. This is to ensure that the provision is applied as broadly 
as needed and provides protection for a child whose identity or status 
is shared with another party resulting in the possibility of 
retaliation as discussed in the preamble of the proposed rule.
    Comment: Several commenters recommended that retaliation include 
restricting normalcy activities (e.g., attempts to restrict access to 
activities that allow youth to make and maintain friends, and develop 
problem solving skills) due to their sexual orientation or gender 
identity. One commenter recommended modifying the final rule to reflect 
that retaliation is not limited to items listed and can include 
restriction of access to supportive community resources.
    Response: ACF agrees that restricting an LGBTQI+ child's access to 
age- and developmentally appropriate supportive resources or 
activities, or access to supportive peers or family members, based on 
their LGBTQI+ status or identity, would constitute retaliation under 
this rule. We also agree that disclosing the child's LGBTQI+ status 
and/or identity in ways that cause harm or risk the privacy of the 
child are impermissible forms of retaliation. The final rule clarifies 
the conduct that will be considered retaliation includes the examples 
listed at Sec.  1355.22(d)(2)(i) through (vi).
    Comment: One commenter voiced concern about a ``lack of an 
enforcement policy related to retaliation'' and stated without 
significant enforcement policy, the provision is hollow.
    Response: We considered the commenters concern and, to provide 
further clarity, modified the regulatory provisions for monitoring in 
the final rule. The final rule now includes monitoring a state agency's 
compliance with the requirements of Sec.  1355.22(d) through the CFSR.
    Final Rule Changes: Consistent with the Protections Generally 
Applicable for all placements, discussed above, the final rule 
clarifies that harassment, mistreatment, or abuse would also be 
considered retaliation. In response to comments on other possible 
retaliatory actions against LGBTQI+ children or their caregivers, the 
final rule also specifies that a title IV-E/IV-B agency, provider, or 
any entity acting on behalf of an agency or provider will be considered 
to have retaliated against a child if it restricts access to 
developmentally appropriate materials or community resources; discloses 
private information in a way that causes harm or violates the rights of 
a child; or uses information about the child's LGBTQI+ status or 
identity to initiate or sustain an investigatory action. The final rule 
extends the prohibition on retaliation to include retaliation against 
current or potential caregivers. It clarifies a requirement that 
children receiving notice of the availability of Designated Placements 
also be provided notice of the retaliation protections, and it provides 
for monitoring state agency compliance through the CFSR.

Section 1355.22(e) Access to Supportive and Age- or Developmentally 
Appropriate Services

    Section 1355.22(a)(5) of the proposed rule described the 
requirements for the agency to provide access to services that support 
the child's LGBTQI+ status and/or identity and includes clinically 
appropriate mental and behavioral health care that is supportive of 
their

[[Page 34836]]

sexual orientation and gender identity and expression.
    Comment: Many organizations suggested adding medical care (some 
referred to this as health care) and clarifying what this entails. 
Several commenters said it was unclear whether the rule allows or 
requires gender-affirming medical care, with some commenters opposing 
access to gender-affirming care and others supporting such access. Many 
organizations suggested the rule should state that gender-affirming 
medical care is among the potential age-appropriate resources and 
services that may support transgender children's health and well-being. 
Other commenters said that gender-affirming care should never be 
considered ``appropriate'' services.
    Response: This rule does not establish any standard of medical 
care. Title IV-E agencies determine what services to provide to an 
individual child, on a case-by-case basis, in accordance with statutory 
requirements. Specifically, the case plan must assure ``that services 
are provided to the parents, child, and foster parents in order to 
improve the conditions in the parents' home, facilitate return of the 
child to his own safe home or the permanent placement of the child, and 
address the needs of the child while in foster care, including a 
discussion of the appropriateness of the services that have been 
provided to the child under the plan''. See section 475(1)(B) of the 
Social Security Act, 42 U.S.C. 675(1)(B). What services are appropriate 
for an individual child would depend on many individual factors, 
including physicians' recommendations, the input and consent of the 
child's authorized legal representative or parent, the child's input, 
and the best available medical guidance at the time. Nothing in this 
rule preempts state laws regulating the practice of medicine or 
prohibiting particular treatments.
    Comment: Many commenters recommended explicitly defining mental and 
behavioral health care as broad and inclusive of wellness practices and 
alternative supports.
    Response: Mental and behavioral health supports are examples of 
required supports for which the agency must provide access to all 
children in foster care, including LGBTQI+ children. As such, ACF has 
determined it is not necessary to provide a definition for these 
examples. Title IV-E/IV-B agencies will determine what mental and 
behavioral health care services are needed on a case-by-case basis in 
accordance with a child's case plan to, among other things, facilitate 
the child's safe return home or the permanent placement of the child.
    Comment: Several commenters suggested explicitly prohibiting the 
use of so-called ``conversion therapy'' and other harmful interventions 
that undermine and conflict with a youth's identity. Other commenters 
asked about the definition and ability to use ``talk therapy.'' Others 
provided information that addressed out of scope issues regarding this 
topic.
    Response: As we stated in the NPRM, efforts to change or suppress a 
child's sexual orientation, gender identity, or gender expression--also 
known as so-called ``conversion therapy''--are not supported by 
credible evidence and have been rejected as harmful by the American 
Academy of Child and Adolescent Psychiatry, the American Academy of 
Pediatrics, the American Psychiatric Association, the American 
Psychological Association, and the National Association of Social 
Workers, among others. The final rule, at Sec.  1355.22(d)(2)(ii), 
includes ``Attempts to undermine, suppress, change, or stigmatize a 
child's sexual orientation or gender identity or expression through so-
called ``conversion therapy'' as a form of prohibited retaliation 
against any child known or perceived to have an LGBTQI+ status or 
identity.
    Section 1355.22(e) requires that the title IV-E/IV-B agency must 
ensure that LGBTQI+ children have access to age- or developmentally 
appropriate services that are supportive of their sexual orientation 
and gender identity or expression, including clinically appropriate 
mental and behavioral health supports, which can include forms of talk 
therapy.
    Comment: Several commenters had suggestions or requested 
clarification regarding the terms used in this provision. Several 
organizations suggested using the term ``developmentally appropriate'' 
instead of ``age-appropriate.''
    Response: We agree with commenters that in addition to age-
appropriate services, a child should have access to developmentally 
appropriate services. Therefore, we are revising the final rule to read 
``age- or developmentally appropriate''. This is to be consistent with 
the definition in section 475(11)(A) of the Social Security Act, 42 
U.S.C. 675(11)(A).
    Comment: A few commenters recommended ACF provide technical 
assistance, consultants, or funding to support recruitment of providers 
in rural areas to support LGBTQI+ children in foster care. Several 
organizations expressed their views on working with local and national 
agencies and individuals with lived experience to maintain a list of 
national resources to assist agencies in identifying supportive and 
age-appropriate services and to add standards of care for what 
constitutes clinically appropriate care and services.
    Response: ACF has a current solicitation for a training and 
technical assistance contractor to assist states and tribes by 
providing training to increase Designated Placements for LGBTQI+ 
children and youth in foster care. ACF intends to issue implementation 
guidance for the final rule incorporating many of these recommendations 
for recruiting Designated Placement providers including in rural areas, 
including partnering with local and national agencies serving LGBTQI+ 
youth, and approaches which are informed by the lived experiences of 
LGBTQI+ children and youth in foster care.
    Final Rule Changes: The final rule states that attempts to 
undermine, suppress, change, or stigmatize a child's sexual orientation 
or gender identity or expression through so-called ``conversion 
therapy'' is a form of prohibited retaliation against any child known 
or perceived to have an LGBTQI+ status and/or identity. The final rule 
also adds that, in addition to age-appropriate services, a child should 
have access to developmentally appropriate services.

Section 1355.22(f) Placement of Transgender and Gender Non-Conforming 
Children in Foster Care

    In the NPRM, ACF proposed that when considering placing a 
transgender, gender non-conforming or intersex child in sex segregated 
child care institutions, the title IV-E/IV-B agency must place the 
child consistent with their gender identity. The NPRM further proposed 
to require that IV-E/IV-B agency also consult with the transgender, 
gender non-conforming, or intersex child to provide an opportunity to 
voice any concerns related to the placement when the agency is 
considering a placement in such a facility.
    Comment: A commenter asked that the final rule clarify placement 
procedures for non-binary and Two-Spirit children living in sex-
segregated child care institutions.
    Response: As explained in the preamble to the final rule for Sec.  
1355.22, non-binary and Two-Spirit children are included throughout 
this regulation under the term LGBTQI+. Thus, this provision for the 
agency to place the child consistent with their gender identity also 
applies to non-binary and Two-Spirit children and we have added the 
language to reflect this in the

[[Page 34837]]

preamble for clarity. When making placement decisions for children 
whose gender identity doesn't meet the sex-segregated options at the 
child care institution, the title IV-E/IV-B agency should engage with 
the child to determine the safest living arrangement that is in the 
child's best interest among the options that are available, giving 
substantial weight to the child's request.
    Comment: Some commenters expressed concern about the NPRM 
requirement for children to be placed in sex segregated child care 
institutions consistent with their self-identified gender identity, not 
their ``biological sex.'' They stated it is a danger and ``disregards 
the child's safety and privacy interests to be placed in a mixed-sex 
setting'' that a child ``may find uncomfortable and invasive or, at 
worst, unsafe.'' One state recommended that the final rule allow for 
discussions that incorporate the child's preference as well as safety 
and risk concerns. Response: ACF agrees that it is important to 
incorporate a child's preference for all placements. While ACF believes 
the requirement to offer a transgender or gender non-conforming child a 
placement consistent with their gender identity is most applicable to 
placements in child care institutions and sex segregated facilities, we 
have determined that it is necessary to extend that requirement to 
apply to all placements for transgender and gender non-conforming 
children. ACF accordingly updated the final rule text to apply to all 
placements for transgender and gender non-conforming children. The 
final rule text states that, when considering placing a child, the 
title IV-E/IV-B agency must offer the child a placement consistent with 
their gender identity. The updated regulatory text is consistent with 
the statutory requirement to place children in the ``most appropriate 
setting available'' (section 475(5) of the Social Security Act, 42 
U.S.C. 675(5)(A)) and the rule's requirement that title IV-E/IV-B 
agencies must give substantial weight to the child's expressed concerns 
or requests when determining the LGBTQI+ child's best interest when 
making placement and service decisions.
    ACF disagrees with the assertion that allowing transgender and 
other youth to access sex-segregated facilities consistent with their 
gender identity will diminish safety or privacy. Courts have held that 
all individuals' safety and privacy can be protected without also 
excluding transgender individuals from accessing sex-separate 
facilities and activities consistent with their gender identity.\32\ 
Title IV-E/IV-B agencies have a range of tools at their disposal to 
accommodate any individuals' privacy concerns in a nondiscriminatory 
manner. However, a title IV/IV-B agency will be in violation of this 
rule if it refuses to offer a child a placement consistent with their 
gender identity. We also note that no application of this rule shall be 
required insofar as it would violate Federal religious freedom, 
conscience, or free speech law and that providers may request an 
accommodation from any rule provision as described in Section IV of the 
preamble, below.
---------------------------------------------------------------------------

    \32\ See, e.g., Grimm v. Gloucester City, 972. F.3d 586 (2020).
---------------------------------------------------------------------------

    In addition, the NPRM proposed to require consultation with the 
child and the final rule maintains this requirement. The final rule 
requires that the title IV-E/IV-B agency consult with the child to 
provide an opportunity for the child to voice any concerns related to 
their placement when the agency is considering placing the child in 
such a facility.
    Comment: One commenter was concerned that the NPRM did not account 
for the preferences of parents whose rights are intact in these agency 
placement decisions.
    Response: Title IV-B/IV-E agencies have an established 
responsibility to engage with parents. For example, under 45 CFR 
1356.21, title IV-E agencies ``must make reasonable efforts to maintain 
the family unit and prevent unnecessary removal of a child from [their] 
home, as long as and the child's safety is assured; [and] to effect the 
safe reunification of the child and family if temporary out-of-home 
placement is necessary to ensure the immediate safety of the child.'' 
Under state and tribal law, parents often also retain certain rights 
even after their children have been removed from their physical and/or 
legal custody. We expect that agencies will act with appropriate 
awareness of parental rights under the law of the applicable state or 
tribe.
    Comment: A few commenters expressed concerns that the provision may 
conflict with state laws and policies that govern sex-segregated 
childcare institutions and that many sex-segregated childcare 
institutions are not equipped to meet these placement requirements.
    Response: The requirement to offer children a placement consistent 
with their gender identity is based on ACF's careful consideration of 
current research on best practices to promote children's health and 
wellbeing, as described in Section II of the preamble. This regulatory 
requirement does not preempt state or tribal laws regarding sex-
segregated institutions. It simply requires that a child be offered a 
placement that is consistent with their gender identity. It thus 
clarifies, for children in foster care, the IV-E statutory requirement 
to place foster children in ``a safe setting . . . consistent with the 
best interest and special needs of the child.'' Section 475(5) of the 
Social Security Act, 42 U.S.C. 675(5)(A). If a state law prohibits 
placement in sex-segregated institutions based on gender identity, then 
the title IV-E/IV-B agency should explore all other placement options 
in order to offer a foster child a placement consistent with their 
gender identity, while also meeting the child's other particular needs. 
ACF further notes that pursuant to Sec.  1355.22(d)(2)(iii), agencies 
may not place children in child care institutions solely due to their 
sexual orientation or gender identity or expression or allow child care 
institutions or other providers to segregate or isolate children on the 
basis of their sexual orientation or gender identity or expression.
    Comment: Some commenters suggested having single or private rooms 
for youth who are non-binary and Two-Spirit who are placed in sex-
segregated childcare institutions to ensure their comfort.
    Response: ACF appreciates the commenter's concern for the privacy 
of such children and notes nothing in this rule would preclude those 
entities from accommodating the privacy needs of any child in their 
care. Appropriate placements should be determined based on the child's 
individual needs and their expressed preferences. We understand the 
commenters' concern that such children might feel especially 
uncomfortable in sex-segregated childcare institutions and encourage 
agencies to work with such children to ensure they receive appropriate 
placements.
    Comment: Commenters made recommendations throughout about how 
Federal funding should be used and that it should be prohibited in 
specified circumstances, such as if a childcare institution does not 
allow children to be placed according to their gender identity.
    Response: The final rule does not regulate how Federal funding 
under title IVE is reimbursed to states and tribes. Eligibility for 
title IV-E reimbursement of the placement of a particular child is 
based on many factors, including that the child is placed in a child 
care institution or foster family home as defined in section 472 of the 
Social Security Act. The final rule implements

[[Page 34838]]

title IV-E and IV-B plan requirements, and not the particulars of title 
IV-E foster care funding. Therefore, the recommendations are not within 
the purview of this final rule and no changes were made to the final 
rule.
    Final Rule Change: The final rule clarifies that the requirement 
for title IV-E/IV-B agencies to offer placements for transgender and 
gender non-conforming children consistent with a child's gender 
identity applies to all placements, not exclusively to sex-segregated 
child care institutions.

Section 1355.22(g) Compliance With Privacy Laws

    As explained in the NPRM, title IV-E/IV-B agencies are prohibited 
from disclosing information concerning foster children for any purpose 
except for those specifically authorized by statute section 471(a)(8) 
of the Social Security Act. Information about a foster child's LGBTQI+ 
identity or status, as well as any other information in their foster 
care case file, is protected by these confidentiality requirements. 
Foster children's personal information may only be disclosed for 
specific authorized purposes, which are, in paraphrase: the 
administration of the title IV-E plan and that of other Federal 
assistance programs; any investigation, prosecution, or audit conducted 
in connection with any of those programs; and reporting child abuse and 
neglect to appropriate authorities. Under ACF regulations and policy, 
information that the IV-E/IV-B agency discloses for those allowable 
purposes may not be redisclosed by recipients unless the redisclosure 
is also for one of the enumerated allowable purposes. 45 CFR 205.50; 
Child Welfare Policy Manual 8.4E.
    Comments: Commenters provided input on the impact of the 
regulations on the privacy and confidentiality of LGBTQI+ youth. In 
addition, in the NPRM we requested public comment on what further 
guidance states may need on producing administrative records to monitor 
and track requests for safe and appropriate placements for LGBTQI+ 
children, while protecting the privacy and confidentiality of all 
children.
    Several commenters expressed concerns that children may feel unsafe 
disclosing their LGBTQI+ identity or reporting mistreatment in their 
current out-of-home placement due to their sexual orientation or gender 
identity. LGBTQI+ youth with lived experience in foster care have 
shared in comment letters, surveys, and testimony that they do not 
disclose their sexual orientation, gender identity or expression to 
foster parents and caseworkers for fear of lack of acceptance, 
unwarranted placement changes, fear of separation from siblings and/or 
unwarranted placements in congregate care facilities, feeling a 
``taboo'' against sharing their LGBTQI+ identity, fearing prejudice, 
and lacking privacy. Commenters additionally stated that state laws 
restricting discussion of LGBTQI+ identities in school may have a 
chilling effect on whether children feel safe disclosing their sexual 
orientation or gender identity.
    A few commenters made suggestions related to enhanced 
confidentiality provisions for data collection on a child's sexual 
orientation, gender identity, or sex characteristics. These included a 
recommendation to include a provision to require the agency to disclose 
information only when necessary for the wellbeing of the child or 
required by court, to regulate permissible uses of data, data sharing, 
and data security/storage protocols, to require consistency with 
confidentiality requirements for health data, and to require the 
child's consent to any disclosure under section 471(a)(8) of the Social 
Security Act (42 U.S.C. 671(a)(8)) about a specific child's sexual 
orientation, gender identity, or sex characteristics. Two commenters 
recommended provisions on how to store, seal and maintain a child's 
record. Specifically, they stated that the final rule should require 
agencies to seal physical records related to a child's sexual 
orientation, gender identity or expression and separately maintain the 
information from the case record and that electronic records should be 
maintained under separate, heightened data security levels.
    Response: These experiences and concerns illustrate the need for 
data confidentiality, and protections from retaliation for disclosure 
or presumption of a child's LGBTQI+ identity and status. Such 
requirements are essential to help ensure that children will feel safe 
to disclose their identity and request Designated Placements.
    Some states have existing privacy and data confidentiality 
requirements related to foster children's sexual orientation, or gender 
identity or expression. For example, California law provides that all 
children in foster care have the right ``to maintain privacy regarding 
sexual orientation and gender identity and expression, unless the child 
permits the information to be disclosed, or disclosure is required to 
protect their health and safety, or disclosure is compelled by law or a 
court order.'' Cal. Welf. & Inst. Code sec. 16001.9(a)(19). In response 
to comments, and to address risks related to the disclosure of a 
child's LGBTQI+ status or identity and to help ensure children feel 
safe in making such disclosures and requesting Designated Placements, 
the final rule includes a number of important protections. First, Sec.  
1355.22(b)(2) provides that the process for requesting a Designated 
Placement or services to make a current placement a supportive one must 
safeguard the privacy and confidentiality of the child, consistent with 
section 471(a)(8) of the Social Security Act (42 U.S.C. 671(a)(8)) and 
45 CFR 205.50. Second, Sec.  1355.22(c) provides that the process for 
reporting concerns about a current placement must safeguard the privacy 
and confidentiality of the child, consistent with section 471(a)(8) of 
the Act (42 U.S.C. 671(a)(8)) and 45 CFR 205.50. Third, Sec.  
1355.22(d)(2)(v) provides that prohibited retaliation includes 
disclosing the child's LGBTQI+ status or identity in ways that cause 
harm or risk the privacy of the child or that infringe on any privacy 
rights of the child. Fourth, Sec.  1355.22(g) specifies that the title 
IV-E/IV-B agency must comply with all applicable privacy laws, 
including section 471(a)(8) of the Act (42 U.S.C. 671(a)(8)) and 45 CFR 
205.50, in all aspects of its implementation of this section, and that 
information that reveals a child's LGBTQI+ status or identity may only 
be disclosed in accordance with law and any such disclosure must be the 
minimum necessary to accomplish the legally-permitted purposes. The 
amount of information necessary to achieve the purpose of the 
disclosure would be determined on a case-by-case basis and in 
consideration of the best interest of the child. For example, the 
information needed to make a referral for a child to receive services 
related to the child's identity or status could be greater than another 
type of referral for services. In addition, states that allow open 
courts would want to be mindful about the information shared in reports 
to the court as that information could be later shared openly.
    The incorporation of these provisions is consistent with existing 
legal requirements relating to privacy and confidentiality. As 
discussed earlier in the preamble, title IV-E/IV-B agencies are 
required to maintain a child's information confidentially and may 
disclose it only for purposes specifically authorized by law. Under ACF 
regulations and policy, information that the IV-E/IV-B agency discloses 
for those allowable purposes may not be redisclosed by recipients 
unless the redisclosure is also for one of the enumerated allowable 
purposes. 45 CFR 205.50; Child Welfare Policy Manual

[[Page 34839]]

8.4E. Regarding the statutory provision that allows title IV-E/IV-B 
agencies to disclose a child's information for investigations, 
prosecutions, criminal or civil proceedings, or audits ``conducted in 
connection with the administration of any [Federal assistance] 
programs,'' the requirement that the proceeding or audit be ``conducted 
in connection with the administration'' of title IV-E or another 
Federal assistance program strictly limits the disclosures allowed. 
Title IV-E/IV-B agencies may not disclose information for purposes such 
as investigating whether children or families are in compliance with 
generally-applicable state or local laws, as such investigations would 
not be conducted in connection with the administration of a Federal 
assistance program.
    Final Rule Changes: The final rule includes several revisions to 
address privacy protections. Paragraph (g) was added to make explicit 
that title IV-E/IV-B agencies must comply with all applicable privacy 
laws, including section 471(a)(8) of the Act and 45 CFR 205.50. 
Information revealing a child's LGBTQI+ status or identity may only be 
disclosed in accordance with law. Such disclosure should be the minimum 
necessary to accomplish the legally-permitted purposes. The final rule 
also includes disclosing the child's LGBTQI+ status or identity in ways 
that cause harm as conduct that constitutes prohibited retaliation. It 
also specifies that the title IV-E/IV-B agency must comply with all 
applicable privacy laws.

Section 1355.22(h) Training and Notification Requirements

    In the NPRM, ACF proposed to require that in order to meet the 
requirements of the rule, title IV-E agencies must ensure that its 
employees who have responsibility for placing children in foster care, 
making placement decisions, or providing services are trained to 
implement the procedural requirements of this section, and are 
adequately prepared with the appropriate knowledge and skills to serve 
an LGBTQI+ child related to their sexual orientation, gender identity, 
and gender expression. The NPRM further proposed that the IV-E agency 
must 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. Finally, the NPRM proposed that the IV-E agency 
must 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 non-retaliation provision.
    Comment: Several organizations recommended engaging LGBTQI+ youth 
with lived experience in development and implementation, providing 
guidance or resources on minimum number of hours, frequency of 
trainings, curricula, topics, developing a list of curricula, or core 
elements for training requirements for employees. Many of the 
commenters provided specific topics and/or core elements and suggested 
curricula. A few commentors also recommended that the trainings be 
certified by certain non-profit agencies.
    Response: We have reviewed all the recommendations and appreciate 
recommendations for high-quality training. ACF has determined not to 
make any changes to the final rule in order to provide appropriate 
flexibility to agencies to determine the breadth of training consistent 
with the statute and rule and not prescribe specific requirements on 
hours, frequency, development, implementation, topics, or core 
elements. ACF intends to issue implementation guidance for the final 
rule which incorporates many of these recommendations for high-quality 
initial and ongoing training for providing supportive care for LGBTQI+ 
children. We expect the guidance will be informed by the lived 
experiences of LGBTQI+ children and youth in foster care, and we 
encourage title IV-E/IV-B agencies to engage LGBTQI+ youth with lived 
experience in foster care in developing employee trainings. Further, 
ACF is committed to providing ongoing training and technical assistance 
to assist states, tribes, and agencies to provide training to increase 
Designated Placements for LGBTQI+ children in foster care.
    Comment: Several commenters recommended that training should be 
mandatory for all staff, including all contractors and subrecipients of 
the child welfare agency.
    Response: ACF has determined not to make any changes to the final 
rule for the following reasons: it would be overly burdensome to title 
IV-E/IV-B agencies to have specific training requirements for those 
employees who do not have responsibility for placing children in foster 
care, for making placement decisions, or for providing services. The 
rule is designed to effectuate Designated Placements in the least 
burdensome manner possible. Thus, the final rule retains the provision 
as proposed.
    Comment. Some commenters recommended that all agency contractors 
must be informed of the procedural requirements.
    Response: The requirement to be informed of the requirements in the 
final rule is essential only for those contractors that are fulfilling 
foster care placements and services. We are not expanding the 
requirement to include contractors and subrecipients who are not going 
to be involved with placements because it is unnecessary and overly 
burdensome for the agency to notify such contractors and subrecipients 
about the requirements of the rule. Thus, no changes to the final rule 
are warranted.
    Comment: Some commenters recommended that all providers, including 
those that are seeking to serve as a designated placement for LGBTQI+ 
children must be informed of the procedural requirements.
    Response: We agree with the commenters and have revised the final 
rule to ensure that all foster care providers are informed about the 
provisions in the final rule. Providers who are Designated Placements 
will receive additional training to meet the needs of the LGBTQI+ 
child, as knowing the full protections required for these children is 
necessary for fulfilling their role as a Designated Placement.
    Final Rule Changes: The final rule clarifies agencies must ensure 
that all placement providers are informed of the procedural 
requirements to comply with this rule, including the required non-
retaliation provisions.

Section 1355.22(i) Protections for Religious Freedom, Conscience, and 
Free Speech

    Comment: Many commenters raised concerns that religious families 
and organizations will have sincerely held religious beliefs that 
conflict with the rule and as a result, those families and 
organizations will be deemed to not be ``safe and appropriate'' by the 
Federal Government. These commenters asserted that both individuals and 
organizations of faith will be discouraged from applying or continuing 
to provide foster care services because they will be penalized for 
their beliefs. Another commenter said that if adhering to a certain 
view of sexuality equates to a hostile environment, faith-based 
institutions and religious foster parents will not fit the standard. 
Similarly, a commenter wrote that a ``safe and appropriate'' placement 
designation implies that a home that espouses certain ethics of

[[Page 34840]]

marriage, sexuality, and gender identity is harmful to LGBTQI+ 
children. Several commenters also stated that in order to be considered 
a safe and appropriate placement, a provider would be expected to 
utilize the child's identified pronouns, chosen name, and allow the 
child to dress in an age-appropriate manner that the child believes 
reflects their self-identified gender identity and expression.
    Response: ACF appreciates the vital role that faith-based providers 
and families of faith play in the child welfare system. Indeed, many 
families of faith are compelled by their religious beliefs to provide 
loving care to children in foster care, including LGBTQI+ children. ACF 
further anticipates that some faith-based providers and families of 
faith will seek to become Designated Placements for LGBTQI+ children, 
while others will choose not to do so.
    ACF remains fully committed to complying with all religious 
freedom, free speech, and conscience laws and regulations, including 
the First Amendment and the Religious Freedom Restoration Act (RFRA), 
42 U.S.C. 2000bb et seq., as well as all other applicable Federal civil 
rights laws and HHS regulations including 45 CFR part 87 (``Equal 
Treatment for Faith-Based Organizations''). A provider requesting any 
accommodation would submit the request to their state's or tribe's 
title IV-E/IV-B agency. If the title IV-E/IV-B agency determines that 
the request concerns an objection based on religious freedom, 
conscience, or free speech to an obligation that is required or 
necessitated by this rule, the title IV-E/IV-B agency must promptly 
forward the request to ACF, which will consider the request in 
collaboration with the HHS Office of the General Counsel. ACF will 
carefully consider any organization's assertion that any obligations 
imposed upon them that are necessitated by this final rule conflicts 
with their rights under the Constitution and Federal laws that support 
and protect religious exercise, free speech, and freedom of conscience. 
Under ACF's established practice, a state or tribe may not disqualify 
from participation in the program a provider that has requested the 
accommodation unless and until the provider has made clear that the 
accommodation is necessary to its participation in the program and HHS 
has determined that it would deny the accommodation. See 45 CFR 87.3(c) 
and (q) (2014).
    We reiterate that this rule does not diminish each state's and 
tribe's obligation to ensure that faith-based organizations are 
eligible on the same basis as any other organization to participate in 
child welfare programs administered with title IV-E and IV-B funds. See 
45 CFR 87.3(a) (2014). Further, states and tribes are prohibited from 
discriminating for or against an organization on the basis of the 
organization's religious character, motives, or affiliation, or lack 
thereof, or on the basis of conduct that would not be considered 
grounds to favor or disfavor a similarly situated secular organization. 
Id.
    Finally, to address some of the concerns that religious providers 
who decline to become designated as a placement provider for LGBTQI+ 
children could be deemed unsafe, the final rule uses different and 
clearer terminology, as outlined earlier in this preamble. The preamble 
notes that all placements must be safe and appropriate for all 
children, regardless of their sexual orientation or gender identity. 
And the final rule clarifies that all placements of LGBTQI+ children, 
like all other children, must be safe and appropriate, whereas 
placements that are offered by providers who decide to become specially 
designated to provide care for LGBTQI+ children will be referred to as 
Designated Placements. As we have explained elsewhere in this preamble, 
the general requirement to avoid harassment, mistreatment, and abuse--
which applies to all children in all placements--does not turn on a 
provider's religious or nonreligious motivation for engaging in conduct 
that rises to the level of harassment, mistreatment, or abuse. Nor 
would a provider's merely holding particular views about sex and 
gender, whether for religious or nonreligious reasons, nor would 
respectful efforts to communicate with LGBTQ+ children about their 
status or identities violate that general requirement.
    Comment: Some commenters discussed the impact of the rule on 
kinship caregivers who are people of faith, and who may have religious 
concerns or objections to provisions within this rule. For example, one 
commenter said that the proposed rule would require training for 
relatives of children who are LGBTQI+ in some circumstances. The 
commenter wrote that such a rule would violate the religious beliefs of 
kinship caregivers. Another commenter said that although the rule 
provides an exemption framework for religious providers, that framework 
does not appear to apply to individual foster parents. Similarly, the 
commenters expressed concern about how the proposed rule would impact 
individual foster care providers with deeply held religious beliefs 
that are not affiliated with a faith-based organization--which could 
include kinship caregivers.
    Response: ACF appreciates that kinship caregivers often provide the 
best possible placement for a child in foster care. That includes 
kinship caregivers who are people of faith. Title IV-E agencies should 
seek to comply with the requirements of this rule while continuing to 
prioritize placements with kinship caregivers whenever a caseworker has 
determined that doing so is in the best interest of a child.
    To be clear as to the training requirement, this final rule only 
requires that providers, including kinship caregivers, be informed of 
the procedural requirements of this rule, including the non-retaliation 
provision. The separate training requirement in paragraph (b)(1)(ii) 
applies only to those providers who voluntarily choose to offer 
Designated Placements. ACF understands that there could be instances in 
which a kinship caregiver has a religious objection to a requirement in 
this rule. But that does not mean the rule violates the religious 
beliefs of all kinship caregivers, or any other providers, irrespective 
of whether they have requested an accommodation. As with any provider 
that requests a religious accommodation, a kinship caregiver with a 
religious objection to a requirement of the rule could seek an 
accommodation by submitting the request to their state's or tribe's 
title IV-E/IV-B agency, which should then follow the same process that 
applies to other providers. As discussed more fully above, under that 
process, if the title IV-E/IV-B agency determines that the request 
concerns an objection based on Federal legal protections for religious 
exercise, free speech, or conscience an obligation that is required or 
necessitated by this rule, the title IV-E/IV-B agency must promptly 
forward the request to ACF, which will consider the request in 
collaboration with the HHS Office of the General Counsel.
    As ACF acknowledged in the proposed rule preamble, in Fulton v. 
City of Philadelphia, 593 U.S. 522 (2021), the Court held that 
Philadelphia's decision to apply a non-discrimination requirement to a 
specific faith-based foster care provider, having made clear that the 
city had ``no intention'' of granting an exception to that 
organization, violated the Free Exercise Clause of the First Amendment. 
Id. at 535. In contrast, in the preambles to both the proposed rule and 
this final rule, ACF has made clear that the agency is fully committed 
to carefully considering any provider's assertion that any obligations 
imposed upon them that are necessitated by this

[[Page 34841]]

final rule conflict with their rights under the Constitution and 
Federal laws and regulations supporting and protecting religious 
exercise and freedom of conscience. ACF will enforce these Federal 
protections by granting religious accommodations that are consistent 
with them where appropriate. RFRA protects the religious liberty rights 
of individuals as well as ``corporations, companies, associations, 
firms, partnerships, societies, and joint stock companies.'' 42 U.S.C. 
2000bb-1; 1 U.S.C. 1. This practice of considering such requests on a 
case-by-case basis is consistent with applicable department-wide 
regulations at 45 CFR 87.3(b) and (c). This individualized approach to 
any religious accommodation requests is also practical because ACF 
expects that many other care providers of varying religious or 
nonreligious backgrounds will be willing to be Designated Placements. 
ACF also recognizes that the facts that are relevant to any potential 
objection may vary considerably because the involvement of the child 
welfare system in kinship care varies from jurisdiction to jurisdiction 
as each state or tribe has its own laws and practices. For example, 
while some potential kinship care providers may have a pre-existing 
relationship with a child in foster care, others may not.
    Through the religious accommodation process to which ACF refers 
above, this rule recognizes that, insofar as the application of any 
requirement under this section would violate applicable Federal 
protections for religious freedom, conscience, and free speech, such 
application shall not be required. It also states that nothing in this 
rule shall be construed to require or authorize a state to penalize a 
provider in the state's titles IV-E and IV-B program because the 
provider does not seek or is determined not to qualify as a Designated 
Placement.
    Final Rule Change: The final rule clarifies that insofar as the 
application of any requirement under the rule would violate applicable 
Federal protections for religious freedom, conscience, and free speech, 
such application shall not be required. The proposed rule did not 
include this provision in the proposed regulation text.

Section 1355.22(j) No Penalties for Providers That Do Not Seek To 
Qualify as Designated Placements

    Comment: Several commenters suggested that any agency contractors 
or subcontractors and their licensed foster care providers who do not 
seek a special designation to serve LGBTQI+ children should not have a 
contract with the state or at a minimum should not be able to utilize 
or claim any Federal funds. Other commenters asserted that the rule 
will penalize those providers who do not seek that designation and will 
thus discourage them from applying or continuing to provide foster care 
services.
    Response: ACF does not intend for this final rule to require any 
provider to seek the status of a Designated Placement. To make that 
point clear, we have added a new Sec.  1355.22(j). This provision 
states that nothing in this rule requires or authorizes a State to 
penalize a provider in the state's titles IV-E and IV-B program because 
the provider does not seek or is determined not to qualify for the 
status of a Designated Placement under this rule. It therefore 
underscores our intent that, as far as Federal law is concerned, the 
choice to become a Designated Placement is a voluntary one to be made 
by each foster care provider. By adopting this structure, ACF ensures 
that LGBTQI+ children in the foster care system will have Designated 
Placements available to them without requiring states or tribes to 
override the choices of providers who do not wish to be Designated 
Placements.
    Final Rule Change: The final rule clarifies that nothing in the 
rule shall be construed to require or authorize a state or tribe to 
penalize a provider in the state's titles IV-E and IV-B program because 
the provider does not seek or is determined not to qualify as a 
Designated Placement under this rule. The proposed rule did not include 
this provision.

Section 1355.22(k) Severability

    Section 1355.22(e) of the Proposed Rule described the severability 
provision in the event that a portion of the rule, if final, is 
determined by be invalid or unenforceable.
    We received no comments about this section and made no changes to 
the final rule, as it appears at Sec.  1355.22(k).

Section 1355.22(l) Implementation

    Comment: We received comments expressing concerns that the 
provisions in the rule added burden on child welfare agencies. One 
commenter indicated that its state would require two to three years to 
implement these new provisions.
    Response: We acknowledge that agencies will need time to come into 
compliance with these provisions, and this final regulation provides 
approximately two Federal fiscal years for implementation. The 
implementation date is on or before October 1, 2026.

Section 1355.22(m) No Effect on More Protective Laws or Policies

    Comment: Commenters sought clarity about whether this regulation 
would preempt conflicting state laws.
    Response: As noted throughout this preamble, this rule does not 
preempt state laws that regulate health care or other matters that 
extend beyond the federally funded title IV-E/IV-B system. Rather, it 
interprets key terms that delineate the care title IV-E/IV-B agencies 
must provide to foster children in the programs carried out with 
Federal title IV-B and IV-E financial assistance. It is within HHS' 
authority to implement the requirements applicable to the receipt of 
Federal matching funds under the Social Security Act for the 
administration of the title IV-B and IV-E programs, and nothing in this 
regulation requires state agencies or other persons to fail to comply 
with general state laws that regulate matters like health care that go 
beyond the foster care system.
    This rule sets a Federal floor for safe and appropriate care of 
LGBTQI+ children in the title IV-B/IV-E program. But it does not limit 
states from providing additional protections to those children. To 
clarify that point, in this final rule, ACF has added a new Sec.  
1355.22(m), entitled ``No effect on more protective laws or policies.'' 
This provision applies to the entirety of the final rule and makes 
clear that nothing in the rule shall limit any State, Tribal, or local 
government from imposing or enforcing, as a matter of state law, 
requirements that provide greater protection to LGBTQI+ children than 
this rule provides. This provision makes clear that, in the context of 
LGBTQI+ children, the final rule creates a Federal floor to enforce 
Congress's mandate that children in title IV-E/IV-B programs receive 
safe and appropriate care. The rule requires that states ensure that 
they have a sufficient number of Designated Placements to serve all 
children in foster care who identify as LGBTQI+ and request or would 
benefit from such a placement. It imposes certain specific requirements 
on providers who have voluntarily agreed to serve as Designated 
Placements. It reaffirms that all children in title IV-E/IV-B programs, 
including LGBTQI+ children, are entitled to protections against 
harassment, abuse, and mistreatment, regardless of their placement. And 
it creates specific nonretaliation protections for LGBTQI+ children, 
also regardless of their placement.
    ACF believes that these provisions, taken together, advance the 
statutory guarantee that children in title IV-E/IV-

[[Page 34842]]

B programs receive safe and appropriate care. But those provisions set 
a floor only. States and tribes may legitimately decide that the 
welfare and interests of LGBTQI+ children require greater protection. 
Nothing in titles IV-E and IV-B authorizes ACF to stand in the way of 
those state decisions, and ACF makes clear in this provision it has no 
intention to do so.
    ACF understands that a number of States have adopted statutes or 
policies that provide protections for LGBTQI+ children that go beyond 
those in this rule. Some of these States require training on how to 
support LGBTQI+ youth for all providers. See, e.g., N.M. Admin. Code 
8.26.5.18.A.(3) (requiring policies to ``educate prospective and 
current foster or adoptive families on how to create a safe and 
supportive home environment for youth in foster care regardless of 
their sexual orientation, gender identity or gender expression''). 
Others have adopted their own detailed requirements governing 
placements for LGBTQI+ children. See, e.g., MD Policy SSA-CW #23-05 
(Dec. 15, 2023). In a recent review of state laws and policies, ACF 
found that ``[l]aws and policies in 22 States and the District of 
Columbia require that agencies provide youth who identify as LGBTQIA2S+ 
with services and supports that are affirming of the youth's LGBTQIA2S+ 
identity and are tailored to meet their specific needs.'' Children's 
Bureau, Protecting the Rights and Providing Appropriate Services to 
LGBTQIA2S+ Youth in Out-of-Home Care at 2 (2023) (footnote omitted). In 
particular, ``[p]olicies in 21 States and the District of Columbia 
address the needed qualifications for persons who provide out-of-home 
care for children or youth who identify as LGBTQIA2S+.'' Id. at 4 
(footnote omitted). And ``[f]ifteen States and the District of Columbia 
require training on LGBTQIA2S+ issues for foster caregivers and related 
staff.'' Id. (footnote omitted). These state laws and policies rest on 
the State's authority to provide protections for children in its foster 
care system, not on this final rule. The State's authority to provide 
those protections preexisted this final rule, and nothing in this final 
rule limits a State's, tribes, or local government's power to impose or 
enforce laws and policies like these.
    Final Rule Change: The final rule clarifies that nothing in the 
rule shall limit any State, tribe, or local government from imposing or 
enforcing, as a matter of law or policy, requirements that provide 
greater protection to LGBTQI+ children than the rule provides. The 
proposed rule did not include this provision.

Section 1355.34(c) Criteria for Determining Substantial Conformity

    Section 1355.34(c)(2)(i) describes an amendment to the Child and 
Family Services Review (CFSR) to monitor compliance with requirements 
in Sec.  1355.22(b)(1).
    Comment: Several commenters expressed support of this provision; 
however, one state expressed concern with monitoring the proposed 
placement provisions through the CFSR, stating it is already a 
cumbersome review process. In addition, a few commenters provided 
recommendations that are not within the purview of this final rule, 
such as changing the overall CFSR process and others suggested expanded 
monitoring processes in addition to the CFSR. Several commenters raised 
the concern that the proposed rule's prohibition on retaliation would 
not be enforced.
    Response: We are modifying the final rule to expand the 
requirements in the rule to be monitored through the CFSR to include 
the retaliation provisions in paragraph (d) and Designated Placements 
and services requirements in paragraph (b), as applicable. Under the 
current CFSR regulations, the Children's Bureau reviews how state title 
IV-E agencies ensure the appropriateness of foster care placements as 
required by the title IVE/IVB case review system. Monitoring through 
the CFSR is the appropriate vehicle because the final rule implements 
these statutory case review system requirements that agencies must meet 
for LGBTQI+ children in foster care.
    Comment: One state questioned how ACF intends to monitor compliance 
with these regulations and whether ACF anticipates making changes to 
reporting requirements for LGBTQI+ children and youth.
    Response: As stated in the NPRM preamble, ACF will monitor both 
state and tribal title IV-E/IV-B agency plan compliance with the 
requirements of Sec.  1355.22 using the partial review process outlined 
in Sec.  1355.34(c)(2)(i). If ACF becomes aware of a potential non-
compliance issue with Sec.  1355.22, it will initiate the partial 
review process. In addition, the final rule now includes monitoring a 
state agency's compliance with Sec.  1355.22(b) and (d) through the 
CFSR. Related to changes in reporting, the requirements in the final 
rule must be included in the state or tribe's title IV-E plan that ACF 
must review and approve.
    Comment: One commenter recommended HHS clarify how, if at all, this 
proposed rule will impact state laws and questioned whether it was 
HHS's position that this rule will preempt state law? Would such state 
laws disqualify states from receiving funding for foster care or lead 
to an enforcement action by HHS? One commenter expressed concern that 
enforcing the requirements for safe and appropriate placements for 
LGBTQI+ children would constitute Federal overreach. The commenter also 
stated that the final rule would ``enforce a narrow definition of this 
requirement that usurps a state's constitutional authority to determine 
what is in the best interests of a child in its foster care system.''
    Response: ACF refers commenters to our responses in section IV of 
the preamble to comments regarding federalism, nondelegation and 
Spending Clause concerns. As noted there, this rule does not preempt 
generally-applicable state laws. Rather, it interprets key terms 
regarding the care title IV-E/IV-B agencies must provide to foster 
children in order to qualify for the Federal title IV-B and IV-E 
Federal financial assistance programs. ACF also refers commenters to 
the new Sec.  1355.22(m), entitled ``No effect on more protective laws 
or policies,'' which is discussed above.
    Comment: A few commenters recommended to expand agency 
accountability beyond monitoring through the CFSR or to modify the CFSR 
process. Suggestions included to engage with impacted youth and 
families, youth advisory boards, and other experts, develop qualitative 
data collection and reporting processes, and provide annual reports to 
ACF.
    Response: ACF reviewed the suggestions provided but we are not 
making any changes to add other monitoring requirements. Several of the 
recommendations are outside the authority of this final rule because 
they are suggestions for changing ACF's monitoring process or adding 
new monitoring processes for the provisions in the rule. However, ACF 
would like to note that the CFSR process includes reviewing qualitative 
data and consultation with youth and others as required under those 
regulations. For example, as part of the Round 4 CFSRs, through a 
series of focus groups, 18 young people with self-identified lived 
child welfare experience were asked about the best methods of 
recruiting, engaging, supporting, and retaining young people in all 
aspects of the CFSRs.
    Final Rule Changes: ACF is retaining the provision in the final 
rule as proposed to review Sec.  1355.22(b)(1) (which was numbered as 
Sec.  1355.22(a)(1)

[[Page 34843]]

in the NPRM) and adding provisions to also review Sec.  1355.22(b) and 
(d) through the CFSR, which is the authority that governs reviews of 
title IV-B and IV-E programs.

Comments on Cross-Cutting Issues

    In the proposed rule, ACF requested public comment on various 
topics and provisions in the NPRM. Responses to these questions are 
described below.

Kinship Caregivers

    In the NPRM, we requested public comment on how agencies can best 
comply with the requirements of the proposed rule and prioritize 
placements with kinship caregivers. In particular, we invited public 
comment on what resources agencies might need from HHS to support 
kinship caregivers in caring for an LGBTQI+ child.
    Comments: Many commenters suggested that kinship caregivers should 
have access to specific training and support to ensure that they can 
provide a caring and nurturing environment for their LGBTQI+ child in 
foster care. Several commenters emphasized that the training should be 
culturally responsive and developed, delivered, and evaluated in 
partnership with youth with lived experience in foster care, kinship 
caregivers, and foster parents. They identified specific programs such 
as Family Builders' Youth Acceptance Project, Affirm for Caregivers, 
and Trans-Generations. A few commenters suggested specific faith-based 
trainings or faith-based partnerships to train and support religious 
families and kinship caregivers to promote family reconciliation and 
preservation, decreasing the need for foster care services, and 
improving outcomes for LGBTQI+ youth.
    Many commenters expressed that Federal funding for recruitment, 
retention, and support of kinship caregivers is limited, and made 
suggestions for additional or enhanced funding for title IV-E/IV-B 
agencies. Several commenters recommended flexibility for states to 
offer exceptions or alternatives to the requirements of this rule for 
kinship caregivers when it is in the best interest and desire of a 
child.
    A few commenters also urged HHS to enhance support for kinship 
placements, such as finding ways for agencies to get more Federal 
funding for pre-placement and in-placement supports, like mental or 
behavioral health services, skills-based trainings, and the ability to 
become a therapeutic foster home. They suggested that agencies enhance 
the staff dedicated to kinship support, increase engagement with kin 
early in a case, increase assistance to kinship navigator programs, and 
offer more support to kin to become licensed.
    Other commenters said that LGBTQI+ children should not be placed 
with kin caregivers unless those caregivers have been designated as 
supportive for LGBTQI+ youth, meeting the requirements the rule would 
impose on any other placement.
    Response: ACF recognizes the vital role that kin caregivers play in 
supporting children in the child welfare system. Indeed, a robust body 
of evidence suggests that children in foster care have better outcomes 
when they are placed with kin caregivers.\33\
---------------------------------------------------------------------------

    \33\ Epstein, (2017) Kinship Care is Better for Children and 
Families; Generations United. (2016). Children Thrive in 
Grandfamilies: https://www.grandfamilies.org/Portals/0/Documents/General%20Kinship%20Publications/ABA%20CLP%20full%20kinship%20edition%20-%20julyaug2017.pdf. Miller, 
``Creating a Kin-First Culture,'' July 1, 2017; Child Welfare 
Information Gateway. (2022). Kinship care and the child welfare 
system. U.S. Department of Health and Human Services, Administration 
for Children and Families, Children's Bureau. https://www.childwelfare.gov/pubs/f-kinshi/).
---------------------------------------------------------------------------

    ACF appreciates the opportunity to clarify that title IV-E/IV-B 
agencies are encouraged to continue their work to improve access to 
kinship care alongside implementing the requirements of this 
regulation. Indeed, ACF anticipates that in many instances, expanding 
access to kinship care and complying with the requirements of this rule 
will not be in tension. For example, some LGBTQI+ children may enter 
the foster care system unrelated to a familial conflict over their 
sexual orientation or gender identity. Other children who enter foster 
care because of a conflict with family over their LGBTQI+ status or 
identity may have a supportive relative who is willing to serve as a 
kin caregiver and a Designated Placement.
    While ACF is not adopting commenter's requests to include an 
exception from the requirements of this rule for kin caregivers, ACF 
has revised the final rule, as explained above, to provide that when a 
request for a placement change or services is made, the title IV-E/IV-B 
agency must consider whether additional services and training would 
allow the current provider to meet the conditions for a Designated 
Placement. If so, the title IV-E/IV-B agency must use the case review 
system to regularly review the status of a placement that has elected 
to become a Designated Placement to ensure progress towards meeting the 
conditions of such a designation. These steps would also apply to kin 
placements.
    ACF strongly encourages title IV-E/IV-B agencies to identify or 
develop services that effectively prioritize preserving placement 
stability by offering kin caregivers the resources, training, and 
support needed to serve as Designated Placements and otherwise meet the 
specific needs of LGBTQI+ children.
    In many instances, ACF anticipates that kin caregivers will be the 
provider who can best meet the needs of an LGBTQI+ child. In some 
cases, the kinship caregiver will not wish to seek designation or serve 
as a supportive placement for a child as identified in paragraph 
(b)(1). Where the child prefers the kinship placement, and where the 
kinship caregiver can provide a safe and appropriate placement under 
this rule, even if it is not a Designated Placement as outlined in 
paragraph (b)(1), the kinship placement may often be in the children's 
best interest; in those circumstances, the kinship placement would not 
be inconsistent with this rule.
    As the proposed rule laid out, title IV-E agencies may use Federal 
IV-E funds to provide trainings for providers seeking to become a 
Designated Placement or to recruit new Designated Placement providers. 
We appreciate the opportunity to clarify that providing additional 
resources and training to kinship caregivers to allow them to serve as 
a Designated Placement for an LGBTQI+ child, when caregivers choose to 
do so, would be an allowable use of IV-E funds. In addition, a recently 
published ACF final rule allows a title IV-E agency to claim title IV-E 
Federal financial participation (FFP) for the cost of foster care 
maintenance payments (FCMP) on behalf of an otherwise eligible child 
who is placed in a relative or kinship licensed or approved foster 
family home when the agency uses different licensing or approval 
standards for relative or kinship foster family homes and non-relative 
foster family homes.\34\
---------------------------------------------------------------------------

    \34\ 45 CFR part 1355. See 88 FR 66700, September 28, 2023 
(https://www.federalregister.gov/documents/2023/09/28/2023-21081/
separate-licensing-or-approval-standards-for-relative-or-kinship-
foster-family-
homes#:~:text=In%20addition%2C%20the%20final%20rule,related%2Fnon%2Dk
inship%20foster%20family).
---------------------------------------------------------------------------

Impact of the Regulation on Foster Provider Availability and 
Participation

Requests for Comment on Recruitment of Providers To Support LGBTQI+ 
Children

    In the NPRM, we requested public comment on how ACF can best 
support agencies in recruiting providers who

[[Page 34844]]

will be able to provide safe and appropriate placements for LGBTQI+ 
children.
    Comments: Many commenters responded with several suggestions on how 
to support states and tribes' recruitment efforts. Some commenters 
expressed concern that Federal funding for recruitment, retention, and 
support for foster family caregivers is limited. They suggested that 
HHS convene workgroups and provide more guidance/best practices/
technical assistance on recruitment strategies for foster family homes, 
collaborate with agencies to provide training for prospective foster 
families and employees of childcare institutions, make additional 
financial resources available to foster families, target assistance to 
rural areas, and adopt nondiscrimination protections prohibiting 
agencies from rejecting prospective LGBTQI+ providers. Other commenters 
made suggestions on how title IV-E/IV-B agencies can increase their 
pool of available providers. They suggested regularly reporting to 
state legislatures and the public on the pool of available providers 
and recruitment efforts.
    Several commenters recommended that agencies expand partnerships 
with organizations representing/working with the LGBTQI+ community, 
faith organizations, and individuals with lived experience, and 
increase use of social media to enhance recruitment within the LGTBQI+ 
community. They encouraged agencies to be flexible in delivering foster 
family trainings (such as flexible times, virtual, etc.) and to also 
recruit people to support LGBTQI+ youth in other ways, such as being a 
guardian ad litem or mentor. A few commenters made suggestions on 
revisions to the training curriculum related to recruitment, such as 
including modules on youth development.
    Response: ACF appreciates commenters' recommendations for how title 
IV-E/IV-B agencies can improve recruitment of providers and foster 
families to serve as Designated Placements. ACF agrees these are 
promising practices and may share additional best practices and 
technical assistance through additional guidance. As clarified in the 
NPRM, IV-E agencies may draw down funds under title IV-E for certain 
activities to comply with this rule, including recruiting and training 
providers to be Designated Placements.

Concerns About a Shortage of Providers

    Comment: Many commenters (both in support and opposition of the 
NPRM) expressed a concern that the proposal's provisions would 
exacerbate a nationwide shortage of placements and services. Commenters 
said that the NPRM focuses on recruiting placements for LGBTQI+ 
children instead of all children in foster care. They also argued the 
NPRM did not include providing support for families and kin to become 
safe and supportive homes for LGBTQI+ children and expressed concern 
that this could lead to children being placed outside of their 
communities or separation from siblings. They expressed concerns either 
that faith-based providers would be ``disqualified'' from being 
placements or ``driven away'' due to their views, or that the NPRM 
would lead to agencies labeling faith-based families as ``hostile'' or 
``abusive'' due to sincerely held religious beliefs.
    Moreover, a commenter stated that placing the onus on states and 
tribes to confirm and affirm that a foster family home is safe and 
appropriate when there is already a shortage of foster homes will end 
up hurting the children that this regulation is purporting to protect. 
One commenter questioned the NPRM's assertion that enough foster 
parents can be found to replace those that would be lost as a result of 
their religious beliefs.
    A few commenters elevated concerns about the lack of behavioral 
health care providers who specialize in working with LGBTQI+ youth. 
Some commenters were concerned that LGBTQI+ training would be added to 
the list of caseworker requirements without considering the capacity of 
the workforce to provide quality services. Another commenter said that 
some states already have a reimbursement structure that considers the 
unique needs of individual children and felt this NPRM would be 
cumbersome to implement. Some commenters offered suggestions, 
including:
     Issuing ACF guidance on how agencies should balance the 
requirements of this NPRM with other placement considerations such as: 
prioritizing kinship placements; no placement change unless a child is 
unsafe; conferring with youth on whether they want to remain in the 
current placement; and factors such as sibling unification, least 
restrictive setting, school, friends, and community.
     Utilizing incentives for recruiting more placements and 
evidence-based trainings/resources for supporting the child welfare 
workforce and providers to become Designated Placements.
     Building in flexibility for agencies to make exceptions or 
alternatives to Designated Placement criteria for kinship caregivers, 
emergency, and short-term placements, to offer religious exemptions for 
staff members, and to consider the best interest of a child.
    Response: ACF appreciates the concerns raised by commenters about 
potential impacts of the final rule on the availability of services and 
placements. In response to these comments and suggestions offered, we 
note that the rule provides a two-year ramp up period for title IV-E/
IV-B agencies; that title IV-E funds may be used for recruitment and 
training efforts; and that we have clarified in the final rule how kin 
and other potential or existing placements for LGBTQI+ children can be 
supported to become Designated Placements. ACF also notes that the NPRM 
did not assert that recruitment of foster parents to provide LGBTQI+ 
supporting placements would ``replace'' providers who did not seek to 
qualify as Designated Placements. Rather, ACF anticipates that 
additional outreach efforts by states and tribes to recruit providers 
will expand, not reduce, overall supply. And in response to comments 
expressing concern that some providers and families would be lost or 
disqualified from providing foster placements, we added language to the 
final rule clarifying it shall not be construed to require or authorize 
penalization of any provider that is not considered or seeking 
consideration as a Designated Placement for LGBTQI+ children. When 
states and tribes select organizations to participate in the child 
welfare program, ACF would recommend that states and tribes do not 
adopt selection criteria that disadvantage any faith-based 
organizations that express religious objections to providing Designated 
Placements for LGBTQI+ children.

Youth Disclosure of LGBTQI+ Status

    Comment: Many commenters stated that by requiring that LGBTQI+ 
youth request a supportive placement, that they will be forced to 
disclose their sexual orientation or gender identity, and that forcing 
children to ``come out'' in order to receive services places an unfair 
onus on them. Several commenters provided suggestions for how to 
ascertain a youth's sexual orientation and gender identity information. 
Several commenters recommended varying ages at which it would be 
appropriate for a caseworker to inquire about a child's identity. 
Commenters said it was important to inform youth that there are 
resources available as part of regular, ongoing case practice. Others 
felt there may be many reasons why a youth will choose to not disclose 
their sexual orientation and gender identity, such as preventing a 
change in placement to stay with

[[Page 34845]]

siblings, avoiding changing schools, or leaving communities. Examples 
shared included a fear of coming forward to identify as LGBTQI+ due to 
unforeseen consequences in their lives or a fear of rejection--
consequences that represent an added burden for youth already 
navigating stressful experiences. Commenters questioned how the NPRM's 
provisions would help these youth, or youth who would be ``presumed'' 
to be cisgender/heterosexual, and that choosing nondisclosure should 
not prevent them from being treated appropriately.
    Response: ACF understands many LGBTQI+ children may choose not to 
disclose their LGBTQI+ identity to their caseworker. Commenters cited 
research showing that two key reasons LGBTQI+ children in foster care 
choose not to share their sexual orientation or gender identity with 
their caseworker are (a) fear of rejection by the caseworker and (b) 
fear of a placement change. Some measures to allay those fears were 
provided in the NPRM and remain in the final rule, including (a) 
ensuring that Title IV-B and IV-E agency employees who have 
responsibility for placing children in foster care, making placement 
decisions, or providing services are adequately prepared with the 
appropriate knowledge and skills to serve an LGBTQI+ child related to 
their sexual orientation, gender identity, and gender expression, and 
(b) prohibiting an unwarranted placement change as a form of prohibited 
retaliation due to a child's disclosure of or perceived LGBTQI+ status 
or identity. To further address these concerns, the final rule adds the 
requirement that the notice to inform children of the availability of 
Designated Placements or services to make their current placement more 
supportive must include informing the child that under no circumstances 
will there be retaliation against them for disclosure of their LGBTQI+ 
status or identity or their request for a Designated Placement, and to 
describe the process by which a child may report a concern about 
retaliation.
    To further address commenters' concerns that children's fears that 
a request for a new placement will necessarily result in a placement 
change and possible separation from siblings and community, as well as 
the concerns of commenters who said it was important to inform youth 
that there are resources available as part of regular, ongoing case 
practice, ACF made changes in the final rule at Sec.  1355.22(b)(2) to 
require providing a child: 1) with the option to request their current 
placement be offered services to become a Designated Placement; and 2) 
with an opportunity to express their needs and concerns. Further, Sec.  
1355.22(b)(3) of the final rule requires that, before initiating any 
placement changes, the title IV-E/IV-B agency must consider whether 
additional services and training would allow the current provider to 
meet the conditions for a Designated Placement, if the current provider 
wishes to do so, rather than necessarily generating a placement change, 
particularly for children placed with kin, siblings, in close proximity 
to their family of origin, and/or in a family-like setting. The final 
rule also adds at Sec.  1355.22(d)(2)(iii) that prohibited retaliation 
against a child with or perceived to have an LGBTQI+ identity or status 
includes restricting access to siblings and family members.
    In response to commenters who stated that children choosing not to 
disclose their LGBTQI+ identity should not prevent them from being 
treated appropriately, the final rule expands the definition of 
prohibited retaliation, requires informing children about protections 
from retaliation, and expands the notification requirements to 
subcontractors and providers of the prohibition on retaliation based on 
a child's actual or perceived LGBTQI+ status or identity. Specifically, 
as noted above, the final rule requires the notification of the 
availability of Designated Placements to provide information on the 
prohibition on retaliation and how to report retaliation. Further, the 
final rule retains the requirement from the NPRM that the title IV-E/
IV-B agency must ensure that LGBTQI+ children have access to age- or 
developmentally appropriate services that are supportive of their 
sexual orientation and gender identity, including clinically 
appropriate mental and behavioral health supports, and must ensure that 
all 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 
including the requirement to comply with prohibitions on retaliation. 
The final rule extends the requirement of informing placement providers 
of procedural requirements, including the prohibition on retaliation, 
to all providers.

Research on LGBTQI+ Children in Foster Care

    In the NPRM, we described a significant body of evidence 
demonstrating that LGBTQI+ youth are overrepresented in the child 
welfare system and face worse outcomes.
    Comment: Many commenters expressed their support and appreciation 
for the proposed rule's overview of research on the disparities that 
LGBTQI+ youth face in foster care. Other commenters raised concerns 
about specific studies cited by HHS. Some commenters argued that data 
cited by HHS overstates the extent of LGBTQI+ children in the foster 
care population, criticizing one study cited as having a small sample 
size and citing a previous local survey from 2014 which found 19 
percent of foster youth surveyed identify as LGBTQI+.
    Response: ACF thanks the commenters for their support for the 
rule's discussion of research on the disparities that LGBTQI+ youth 
face in foster care. In response to concerns about studies about the 
size of the LGBTQI+ foster youth population, ACF based its estimate on 
the three recent studies cited above, one of which is a more recent 
(2021) local survey than the 2014 local survey, and two others which 
draw on larger data sources (national data in one case and California 
statewide data in the other).\35\
---------------------------------------------------------------------------

    \35\ Baams, Laura., Stephen T. Russell, and Bianca D.M. Wilson. 
LGBTQ Youth in Unstable Housing and Foster Care, American Academy of 
Pediatrics, Volume 143, Issue 3, March 2019, https://doi.org/10.1542/peds.2017-4211. Fish, J., Baams, L., Wojciak, A.S., & 
Russell, S.T. (2019), Are Sexual Minority Youth Overrepresented in 
Foster Care, Child Welfare, and Out-of-Home Placement? Findings from 
Nationally Representative Data. Child Abuse and Neglect, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7306404/. Institute for 
Innovation and Implementation at University of Maryland's School of 
Social Work and the National Quality Improvement Center on Tailored 
Services, Placement Stability, and Permanency for LBTQ2S Children 
and Youth in Foster Care (2021). Cuyahoga Youth Count: A Report on 
LGBTQ+ Youth Experience in Foster Care, https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf.
---------------------------------------------------------------------------

    Comment: One commenter stated that research about the impact of 
family acceptance or rejection on LGBTQI+ youth is methodologically 
flawed.
    Response: ACF believes that two key studies cited in the NPRM about 
the impact of family acceptance or rejection on LGBTQI+ youth have 
sound methodology. The first utilized quantitative scales to assess 
retrospectively the frequency and nature of parent and caregiver 
responses to a lesbian, gay, or bisexual (LGB) sexual orientation in 
adolescence. The study was based on in-depth interviews with 224 LGB 
young adults aged 21-25 and found dramatic disparities in health 
outcomes between youth who experienced high levels of family rejection 
compared to those who experienced low levels of family

[[Page 34846]]

rejection.\36\ An additional study cited in the NPRM on the critical 
importance of accepting caregiver behavior for positive mental health 
outcomes for LGBTQI+ youth was based on a 2022 survey of over 30,000 
LGBTQ youth in the United States, which included questions regarding 
considering and attempting suicide that were identical to those used by 
the Centers for Disease Control and Prevention (CDC) in their Youth 
Risk Behavior Surveillance System (YRBS) and had overall findings which 
were corroborated by data from the YRBS survey.\37\ Other studies find 
that it is ``clear from existing research that family acceptance and 
rejection is crucial to the health and well-being of LGBT youth.'' \38\ 
This illustrates the importance of Designated Placements for LGBTQI+ 
children in foster care.
---------------------------------------------------------------------------

    \36\ Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009). 
Family rejection as a predictor of negative health outcomes in white 
and latino lesbian, gay, and bisexual young adults. Pediatrics, 
123(1), https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext.
    \37\ The Trevor Project, 2022 National Survey on LGBTQ Youth 
Mental Health, https://www.thetrevorproject.org/survey-2022/assets/static/trevor01_2022survey_final.pdf.
    \38\ Katz-Wise SL, Rosario M, Tsappis M. Lesbian, Gay, Bisexual, 
and Transgender Youth and Family Acceptance. Pediatr Clin North Am. 
2016 Dec;63(6):1011-1025. doi: 10.1016/j.pcl.2016.07.005. PMID: 
27865331; PMCID: PMC5127283, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5127283/.
---------------------------------------------------------------------------

    Comment: Two commenters criticized a 2021 study, which showed that 
children in foster care who identify as LGBTQI+ report a perception of 
poor treatment by the foster care system more frequently than their 
non-LGBTQI+ counterparts, as having ``significant limitations.'' \39\
---------------------------------------------------------------------------

    \39\ Matarese, M., Greeno, E., Weeks, A., Hammond, P. (2021). 
The Cuyahoga youth count: A report on LGBTQ+ youth's experience in 
foster care. Baltimore, MD: The Institute for Innovation & 
Implementation, University of Maryland School of Social Work, 
https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf.
---------------------------------------------------------------------------

    Response: The data in this study is corroborated by five other 
studies cited by HHS.\40\ Children in foster care who identify as 
LGBTQI+ are less likely to report at least ``good'' physical and mental 
health and are less likely to have at least one supportive adult on 
whom they can rely for advice or guidance, than their non-LGBTQI+ 
counterparts in foster care.\41\
---------------------------------------------------------------------------

    \40\ McCormick, A., Schmidt, K., and Terrazas, S. (2017) LGBTQ 
Youth in the Child Welfare System: An Overview of Research, 
Practice, and Policy, Journal of Public Child Welfare, 11:1, 27-39, 
DOI: 10.1080/15548732.2016.1221368, https://doi.org/10.1080/15548732.2016.1221368. Wilson, B.D.M., Cooper, K., Kastanis, A., & 
Nezhad, S. (2014), Sexual and Gender Minority Youth in Foster care: 
Assessing Disproportionality and Disparities in Los Angeles, The 
Williams Institute, UCLA School of Law, https://williamsinstitute.law.ucla.edu/wp-content/uploads/SGM-Youth-in-Foster-Care-Aug-2014.pdf. Poirier, J., Wilkie, S., Sepulveda, K & 
Uruchima, T., Jim Casey Youth Opportunities Initiative: Experiences 
and Outcomes of Youth Who Are LGBTQ, 96.1 Child Welfare, 1-26 
(2018), https://www.proquest.com/docview/2056448464.https://www.proquest.com/docview/2056448464. Wilson, B.D.M., & Kastanis, 
A.A. (2015). Sexual and gender minority disproportionality and 
disparities in child welfare: A population-based study. Children and 
Youth Services Review, 58, Pages 11-17, ISSN 0190-7409, https://doi.org/10.1016/j.childyouth.2015.08.016. Mountz, S., Capous-
Desyllas, M., & Pourciau, E. (2018). `Because we're fighting to be 
ourselves:' voices from former foster youth who are transgender and 
gender expansive. Child Welfare, Suppl.Special Issue: Sexual 
Orientation, Gender Identity/Expression, and Child Welfare, 96(1), 
103-125, https://www.proquest.com/scholarly-journals/because-were-fighting-be-ourselves-voices-former/docview/2056448509/se-2.
    \41\ Jeffrey Poirier, Jim Casey Youth Opportunities Initiative: 
Experiences and Outcomes of Youth Who Are LGBTQ, 96.1 Child Welfare, 
1-26 (2018), https://www.proquest.com/docview/2056448464.
---------------------------------------------------------------------------

    Comment: Other commenters criticized a study on mental health 
disparities faced by LGBTQI+ youth as being unreliable and subject to 
bias.
    Response: We note that the study cited by HHS is based on a sample 
size of over 40,000 youth surveyed and provides the adjusted odds ratio 
and a probability value of under .001 (showing that results are highly 
unlikely to be due to chance), and the NPRM cited two additional 
studies showing disproportionately poor mental health outcomes for 
LGBTQI+ foster youth.\42\
---------------------------------------------------------------------------

    \42\ Institute for Innovation and Implementation at University 
of Maryland's School of Social Work and the National Quality 
Improvement Center on Tailored Services, Placement Stability, and 
Permanency for LBTQ2S Children and Youth in Foster Care (2021). 
Cuyahoga Youth Count: A Report on LBTQ+ Youth Experience in Foster 
Care, https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf. Wilson, B.D.M., Cooper, K., 
Kastanis, A., & Nezhad, S. (2014), Sexual and Gender Minority Youth 
in Foster care: Assessing Disproportionality and Disparities in Los 
Angeles, The Williams Institute, UCLA School of Law, https://williamsinstitute.law.ucla.edu/wp-content/uploads/SGM-Youth-in-Foster-Care-Aug-2014.pdf.
---------------------------------------------------------------------------

Nondiscrimination Provisions

    Comments: Several commenters suggested that ACF issue stronger 
language on protections for children in foster care from discrimination 
on the basis of disability and gender identity. They specified that 
there are no anti-discrimination laws in many states to prohibit 
discrimination against LGBTQI+ prospective foster parents. Another 
commenter suggested that ACF adopt a similar anti-discrimination policy 
as in other Federal programs.
    Other commenters recommended that the final rule forbid 
discrimination based on any characteristics in any part of the child 
welfare system. They argued that foster children, parents, kin 
caregivers, and prospective and current foster and adoptive parents 
have constitutional rights to due process and equal protection. A 
commenter also stated that ``discrimination is the proper and 
appropriate term instead of retaliation'' as that term was used in the 
proposed rule.
    Response: Both the NPRM and this final rule focus on improving how 
the child welfare system meets the particular needs of LGBTQI+ foster 
children, based on the extensive evidence showing the difficulties 
those children disproportionately face. ACF is open to considering 
future policymaking that would address discrimination in broader ways, 
including discrimination on the basis of other characteristics, where 
ACF has legal authority to do so. We note that HHS's Office for Civil 
Rights enforces several statutes that prohibit various forms of 
discrimination in programs funded by the Department, including the 
title IV-E/IV-B program. Those statutes include section 504 of the 
Rehabilitation Act of 1973, 29 U.S.C. 794, which prohibits disability 
discrimination by recipients of Federal financial assistance, and title 
VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, which prohibits 
discrimination by recipients of Federal financial assistance on the 
basis of race, color, or national origin, including discrimination on 
the basis of shared ancestry and ethnic characteristics.\43\ The 
Department has already promulgated regulations implementing these 
prohibitions, see 45 CFR part 80 (title VI); id. part 84 (section 504). 
On September 14, 2023, HHS issued a proposed rule to update its section 
504 regulation. 88 FR 63392. Whether additional antidiscrimination 
rules are necessary or consistent with ACF's statutory authority would 
be appropriately considered after the conclusion of this rulemaking.
---------------------------------------------------------------------------

    \43\ https://www.hhs.gov/civil-rights/for-individuals/special-topics/shared-ancestry-or-ethnic-characteristics-discrimination/.
---------------------------------------------------------------------------

    In regard to the comment arguing for the use of ``discrimination'' 
in the place of retaliation, retaliation is, by definition, an 
intentional act. It is a form of discrimination because the individual 
in question is being subjected to differential treatment. Cf. Jackson 
v. Birmingham Board of Education, 544 U.S. 167 (2005) (holding that 
retaliation is a form of intentional discrimination under title IX of 
the Education Amendments of 1972). We use the term ``retaliation'' in 
the final rule because a key goal of this provision is to ensure

[[Page 34847]]

that children do not experience harm that might deter them from seeking 
or benefiting from the protections afforded by the rule.

Implementation Costs

    In the NPRM, we requested comments on whether state and tribal 
agencies are likely to incur additional substantial costs as a result 
of this rulemaking.
    Comments: Numerous commenters stated there would be additional 
costs to implement this proposal and increased costs for FFP matching, 
some stating that the NPRM's estimates were too low and others 
describing the cost increases as ``substantial'' or ``significant.'' 
State and state attorneys general commenters were generally concerned 
about increasing costs to expand recruitment, retention, and training 
of providers, to reprogram case management systems to track costs and 
notification requirements, and to enforce and monitor the retaliation 
provisions. States also expressed a concern with the increased cost for 
children who are not title IV-E eligible, which is outside of the scope 
of this rule.
    Response: ACF acknowledges there will be state and tribal costs to 
implement the final rule. Responses to comments on the cost estimate 
are provided in the Annualized costs to the Federal Government section. 
ACF is providing a more than two-year implementation period to allow 
time for states and tribes to address their unique funding issues. We 
also reiterate that title IV-E agencies may claim allowable recruitment 
and training costs under the title IV-E foster care program.

Requests for Technical Assistance and Implementation Supports and 
Questions About Implementation and Compliance Monitoring

    In the NPRM, we requested public comment on how ACF can best 
support agencies, including those located in rural and other resource-
limited areas, in fulfilling a placement that will facilitate access to 
age-appropriate resources, services, and activities for LGBTQI+ 
children in foster care.
    Comments: Many commenters responded with several recommendations on 
how ACF can support agencies, providing additional funding/or grants 
for expanding and reimbursing service costs (e.g., transportation, 
technology aids). A few organizations recommended ACF provide technical 
assistance/consultants to support rural provider recruitment. Other 
commenters recommended ACF utilizing local faith-based services, 
developing a national resource list of providers including virtual/
online or telehealth services, and requiring agencies to display 
available resources and hotlines and to note the technical assistance 
that is available.
    Response: We appreciate the comments and suggestions. While we are 
not making any changes to the final rule related to this, there are 
numerous technical assistance resources available through CB, for 
example the Capacity Building Center for States and the National Center 
for Diligent Recruitment. The primary manner in which ACF can support 
state and tribal efforts is through CB's technical assistance 
providers, which is addressed in detail in the below response to 
comment.
    Comments: Many commenters requested technical assistance, sought 
specifics on how compliance will be monitored, and asked questions 
about implementation. Several commenters recommended changes to the 
NPRM that would require providers to notify the agency, describe 
children and provide a rationale for whom they are ``unwilling or 
unable to provide safe and appropriate placements or care.''
    A few commenters suggested clarification and support for challenges 
related to the Interstate Compact on the Placement of Children, such as 
the need for more placements across jurisdictional lines. Some 
commenters asked for clarification on licensing requirements for 
childcare institutions and foster family homes regarding room sharing 
based on gender identity and procedures for foster parents, such as 
identifying the children for whom they are willing to provide a home. 
One commenter recommended a targeted plan for specially designated 
placements for LGBTQI+ children within the five-year Child and Family 
Services Plans (CFSPs) in the NPRM. Many commenters suggested that HHS 
provide extensive training guidance through implementation guidelines, 
more funding for family acceptance training, and pilot programs in 
rural areas regarding the NPRM's provisions.
    Commenters requested technical assistance on capacity building and 
recruitment strategies. Many commenters asked for clarification on how 
agencies should respond in circumstances where providers and agencies 
cannot fulfill the requirements of the NPRM and on ``accountability'' 
for the provisions.
    Response: On behalf of the Children's Bureau (CB), the Capacity 
Building Center for States (the Center) helps state and territorial 
child welfare agencies strengthen, implement, and sustain effective 
child welfare practices. The Center provides tailored technical 
assistance to states and territories on a wide array of topics to 
improve outcomes and overall system functioning, including support for 
states in implementing this final rule. At the request of a 
jurisdiction (or the Children's Bureau), customized assistance is 
available to support effective program improvement efforts. In 
collaboration with the state or territory (and counties as appropriate) 
and the Children's Bureau, the Center assists child welfare agencies in 
implementation and program improvement efforts. Center technical 
assistance support may include training, coaching, curriculum 
development, data analysis and individualized program consultation. 
Each state or territory has an identified Center Liaison who can assist 
in initiating technical assistance. Liaison contact information for 
each state and territory is readily available via the Center's website.
    On behalf of the Children's Bureau, the Capacity Building Center 
for Tribes (the Center for Tribes) is also available to assist tribes 
with implementing the final rule. The Center for Tribes collaborates 
with American Indian and Alaska native nations to help strengthen 
tribal child and family systems and services. The Center for Tribes 
offers an array of services, including peer networking activities and 
individualized expert consultation. These services are available at no 
cost to assist with improving tribal child welfare practice and 
performance in several key areas, such as recruiting and training 
families to meet the individualized needs of children in care.
    In addition, the Children's Bureau has recently funded the National 
Center for Diligent Recruitment, a new component of the AdoptUSKids 
project. This national center provides multiple forms of free technical 
assistance to support states, tribes, and territories in developing and 
implementing strategic, data-driven diligent recruitment plans. The 
goals of the technical assistance are to increase capacity to 
effectively collect and analyze quantitative and qualitative data to 
guide targeted recruitment efforts; to provide on-site, tailored 
support for the work of states, tribes, and territories in constructing 
robust diligent recruitment plans based on evidence-informed and 
evidence-based research; and to further the evidence-base of family 
finding, relative outreach, reunion support, and intensive recruitment 
and retention services within the communities of origin of the 
children/youth in the foster care system.
    With respect to the suggestions regarding the Interstate Compact on 
the

[[Page 34848]]

Placement of Children (ICPC), the Federal Government has no authority 
over the ICPC. Rather the compact amendments are made and ratified 
through agreement among the Compact members and the incorporation of 
those changes in respective state statutes. There is a minimum 
requirement of member states agreeing to changes before the Compact 
itself is ratified. This is outside the scope of this rule.

IV. Response to Comments Raising Statutory and Constitutional Concerns

First Amendment and Religious Freedom

    Comment: As discussed above in section III of this preamble, many 
commenters expressed concerns that religious families and organizations 
will have sincerely held religious beliefs and practices that conflict 
with the rule and as a result those families and organizations will be 
deemed to not be ``safe and appropriate'' by the Federal Government. 
These commenters asserted that both individuals and organizations of 
faith will be discouraged from applying or continuing to provide foster 
care services because they will be penalized for their beliefs and 
practices.
    Other commenters expressed concern that the proposed rule violates 
providers' First Amendment right to religious liberty. Commenters 
asserted that the proposed rule would prohibit them from fully 
participating in the foster care program. For example, commenters said 
that expressing or practicing their sincerely held beliefs about 
gender, sexuality, or marriage to a foster child in their home could 
result in being labelled as hostile or unsafe for the child.
    Other commenters asserted that the rule will result in faith-based 
providers and individuals being excluded from helping large numbers of 
children in foster care. One commenter said that if ACF's data is 
accurate, excluding such providers would preclude them from providing 
care to potentially one-third of older children in foster care age 12-
21.
    Another commenter said that it is important to protect faith-based 
agencies from regulations that run contrary to their beliefs and 
practices; such protection, the commenter asserted, will ensure a 
diverse set of agencies to serve diverse populations, including placing 
children with specific or special needs such as older children and 
sibling groups.
    Response: ACF values the vital role that religious families and 
faith-based organizations play in providing care and services for 
children in the Child Welfare program and appreciates that many 
families are compelled by their faith to offer safe and loving foster 
homes.
    As noted previously, the final rule has been revised to clarify the 
general requirement that all providers must provide safe and 
appropriate placements for all foster children, and we believe this 
clarification will avoid any unintended implication that providers not 
wishing to offer Designated Placements would not be considered safe and 
appropriate.
    ACF disagrees with the commenter's suggestion that this final rule 
discriminates against faith-based providers, as none of the provisions 
disqualify eligible providers from participating in the title IV-E and 
IV-B programs because of their religious character. Espinoza v. Mont. 
Dep't of Revenue, 140 S. Ct. 2246, 2255 (2020) (citing Trinity Lutheran 
Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017)). This 
rule welcomes faith-based organizations and religious foster parents to 
continue participate in the program, and ACF anticipates that many will 
choose to do so without any religious objections. The obligation to 
provide an environment that supports the child's LGBTQI+ status or 
identity under this rule applies only to those providers who have 
chosen to be Designated Placements. We anticipate that numerous faith-
based organizations and religious foster parents will choose to be 
Designated Placements. But this rule does not require any provider to 
make that choice, and it does not impose any penalty or adverse 
consequence on providers with religious objections to serving as a 
Designated Placement. Indeed, the final rule makes clear in paragraph 
(j) that nothing in the rule requires or authorizes a state or tribe to 
penalize a provider that--for whatever reason--chooses not to be a 
Designated Placement. Rather, the rule places the responsibility on 
states and tribes--rather than on providers--to find Designated 
Placements for LGBTQI+ identifying children.
    ACF agrees that it is important to protect faith-based agencies 
from any obligation to comply with a regulatory requirement that 
violates statutory or constitutional protections of religious freedom. 
It is also important to retain a diverse set of agencies to serve 
diverse populations. ACF has determined that this regulation is 
consistent with these goals. In ACF's view, this rule should not 
dissuade any entity that does not meet the definition of a Designated 
Placement, whether for religious or secular reasons, from continuing to 
participate in the foster care program. ACF does not anticipate that 
this rule will cause faith-based providers to discontinue their 
participation in the program, or that it will substantially reduce the 
number of placement agencies available for children. ACF expects that 
states and tribes will not impose burdens on religious exercise when 
they have the discretion to work with the objections of a faith-based 
provider, and that any faith-based provider with a religious objection 
to a requirement in this rule will exercise their right to seek an 
accommodation by submitting a request to their state's or tribe's title 
IV-E/IV-B agency, which must promptly forward the request to ACF.
    ACF takes seriously its obligations under the Constitution and 
Federal laws supporting religious exercise, freedom of conscience, and 
free speech, including the First Amendment and RFRA, and will continue 
to strongly enforce HHS regulations that ensure religious organizations 
must be considered eligible on the same basis as any other organization 
to participate in programs administered with title IV-E and IV-B funds. 
See 45 CFR 87.3(a) (2014) (``part 87''). That rule prohibits states and 
tribes from discriminating for or against an organization on the basis 
of the organization's religious character, motives, or affiliation, or 
lack thereof, or on the basis of conduct that would not be considered 
grounds to favor or disfavor a similarly situated secular organization. 
Also, that rule states that nothing in that regulation ``should be 
construed to preclude HHS from making an accommodation, including for 
religious exercise, with respect to one or more program requirements on 
a case-by-case basis in accordance with the Constitution and laws of 
the United States.'' See 45 CFR 87.3(b) (2014). In addition, this final 
rule has been revised in paragraph (i) to make clear that if 
application of any requirement under this rule would violate Federal 
protections for religious freedom, conscience, and free speech, that 
application will not be required.
    Additionally, under part 87 states and tribes must inform grant 
subrecipients and contractors of their religious freedom rights in both 
solicitations for sub-grants and awards. See 45 CFR 87.3(n) (2014). ACF 
will consider any request for religious accommodation under RFRA or any 
other applicable authority protecting religious freedom to this rule's 
requirements. Under ACF's established practice, a state or tribe may 
not disqualify from participation in the program a provider that has 
requested the accommodation unless and until the

[[Page 34849]]

provider has made clear that the accommodation is necessary to its 
participation in the program and HHS has determined that it would deny 
the accommodation. See 45 CFR 87.3(c) and (q) (2014).
    Comment: A number of commenters expressed concern that a final rule 
would abridge the First Amendment's protection of free speech. A 
commenter wrote that the rule would preclude legitimate sharing of 
ideas and perspectives and would prevent children and young people in 
care from encountering ideas and perspectives beyond their current 
ones. Some commenters argued that requiring agencies and foster 
families to use a child's correct pronouns or chosen name would violate 
the First Amendment by unconstitutionally forcing speech on foster care 
providers. Commenters argued that the First Amendment does not permit 
the government to compel ideological speech. Similarly, commenters 
contended that the rule would impede citizens' free speech more than 
would be necessary to achieve legitimate government ends. A commenter 
wrote that by omitting up-front exemptions, the proposed rule sought to 
chill speech. A couple of commenters asserted that concepts included in 
the proposed rule that relate to a child's identity place individuals 
and organizations of faith at risk of being accused of retaliation as 
described in the proposed rule. These commenters wrote that being 
penalized for retaliation because they were exercising their religious 
beliefs unconstitutionally infringes on and burdens religious 
providers' First Amendment rights both to free speech and free 
exercise.
    Response: ACF is committed to upholding First Amendment rights to 
free speech and religious exercise for all providers and children in 
the child welfare system.
    As to the commenters' concern that this rule violates the Free 
Speech Clause of the First Amendment, ACF also disagrees for two 
reasons. First, this rule does not govern the purely independent 
actions of private parties. Rather, it merely sets the terms on which 
an entity that chooses to provide services under a federally funded 
program must provide those services, without imposing any restrictions 
on any expression those entities engage in outside of the scope of the 
program. ACF is entitled to ensure that the providers of federally 
funded services carry out the Federal program in a way that ensures 
that the purposes of the Federal funding are met. See Rust v. Sullivan, 
500 U.S. 173, 192-99 (1991); Agency for Int'l Dev. v. All. for Open 
Soc'y Int'l, Inc., 570 U.S. 205, 217 (2013). No individual or entity is 
compelled to participate as a provider in the title IV-E/IV-B program--
and, as this final rule makes clear, even among those who do choose to 
participate, no provider is compelled to become or seek to become a 
Designated Placement for LGBTQI+ children. And nothing in the rule 
purports to regulate any provider in their conduct outside of the scope 
of the title IV-E/IV-B program.
    Second, any provider who chooses not to become a Designated 
Placement must simply comply with longstanding obligations under the 
title IV-E/IV-B programs to ensure that all foster children are placed 
in environments that provide safe and appropriate care for all children 
in foster care, as well as the nonretaliation provisions set forth in 
this regulation. As this final rule clarifies, the Department 
anticipates that as a general matter providing a placement that is safe 
and appropriate or complying with these nonretaliation requirements 
would not impose a substantial burden on providers' religious freedom, 
conscience or free speech rights, even aside from the voluntary nature 
of a provider's participation in the title IV-E/IV-B program. For 
example, as noted in section III of this preamble, a title IV-E/IV-B 
agency must ensure that each placement is safe and appropriate, meaning 
that no provider engages in acts of harassment, abuse, or mistreatment. 
Harassment, mistreatment, and abuse as contemplated by the rule are 
conduct, not speech. This is particularly so because harassment under 
the rule requires severe or pervasive acts that create a hostile 
environment, a standard that applies elsewhere in the law.
    ACF disagrees with the commenters' concern that this rule generally 
violates the Free Speech Clause of the First Amendment or the religious 
exercise for all providers for several reasons. ACF has a compelling 
interest in providing these protections for children in the foster 
system as a general matter. ACF provides Federal funding to states and 
tribes to provide appropriate foster care placements for all children; 
to ensure all children are placed consistent with the child's best 
interest; and to provide support for meeting the safety, permanency, 
and well-being needs of all children.
    As ACF has documented in the preambles for the proposed rule and 
this final rule, an extensive body of research shows that the treatment 
LGBTQI+ youth receive from their families and caregivers related to 
their sexual orientation or gender identity is highly predictive of 
their mental health and wellbeing, which the title IV-E/IV-B programs 
serve to protect.
    This final rule requirement that all providers refrain from 
retaliating against children because of their sexual orientation or 
gender identity merely reflects the ordinary requirement that all 
children be provided safe and proper care in foster care. We expect 
that in the typical case the rule's protection against retaliation will 
be the least restrictive means of furthering the compelling interest in 
protecting the mental health and wellbeing of LGBTQI+ children. Should 
a provider establish that an application of the retaliation requirement 
imposes a substantial burden on the exercise of religion, ACF will 
assess whether that particular application is the least restrictive 
means of furthering a compelling interest.
    However, as to the commenter's concern that the rule violates the 
right to religious exercise, we reiterate that Federal protections for 
religious exercise, and the Department's regulatory protections for 
seeking religious accommodation, continue to apply. When applying those 
protections to a particular case, ACF will consider as appropriate 
whether the application of this rule's protections to the particular 
party is the least restrictive means of furthering a compelling 
interest. When reviewing any request for religious accommodation ACF 
will conduct a case-by-case analysis in assessing whether application 
of the Rule's protections complies with RFRA and any other relevant 
Federal religious protection. We also expect title IV-E/IV-B agencies 
to similarly engage in assessing whether they are applying this rule 
and any state's or tribe's requirements in the manner that least 
restricts religious exercise.
    Comment: A number of commenters noted that language protecting 
faith-based providers was included in the preamble of the NPRM but not 
in the regulation text. However, they wrote that the government's 
obligation to accommodate the religious freedom and conscience rights 
of private foster care providers should be incorporated into the rule 
text to create binding law on the Federal Government, states, and 
tribes.
    Response: While the Constitutional and statutory protections would 
be applicable whether or not incorporated in regulatory text, text has 
been added at Sec.  1355.22(i) stating that insofar as the application 
of any requirement under this part would violate applicable Federal 
protections for religious freedom, conscience, and free speech, such 
application shall not be required.

[[Page 34850]]

    ACF further notes that all providers that are impacted by this rule 
are already covered by an HHS regulation at 45 CFR part 87 that 
protects religious freedom, nondiscrimination, and conscience rights. 
Consistent with the regulation at 45 CFR 87.3(n) and (q) as amended in 
2014, state and tribal child welfare agencies must ensure that their 
notices or announcements of award opportunities include language that 
is substantially similar to that in section (a) of appendix A to part 
87. In relevant part, those appendices require that sub-awards and 
contracts inform sub-awardees of their right to carry out child welfare 
programs consistent with ``religious freedom, nondiscrimination, and 
conscience protections in Federal law.''
    A provider that requests any religious accommodation may submit the 
request to its State or Tribal title IV-E/IV-B agency. If the request 
concerns a religious objection to an obligation that is required or 
necessitated by this proposed rule as finalized, the title IV-E/IV-B 
agency must promptly forward the request to ACF, which will consider 
the request in collaboration with the HHS Office of the General 
Counsel.
    Moreover, in response to concerns that the rule might be understood 
as requiring or authorizing the penalization of providers who decline 
to provide Designated Placements, the final rule has also been revised, 
at Sec.  1355.22(j) to provide that nothing in this regulation shall be 
construed as requiring or authorizing a state or tribe to penalize a 
provider that does not seek or is determined not to qualify as a 
Designated Placement from participation in the state's or tribe's 
program under titles IV-E and IV-B.

Statutory Authority

    Comment: A group of state attorneys general commented that they 
believed the proposed rule exceeded ACF's statutory authority under 
titles IV-B and IV-E of the Social Security Act. In support of their 
position, they argued that the IV-B and IV-E statutory requirements for 
agencies to ensure that foster children have ``case plans'' aimed at 
providing ``safe and proper'' care and ``appropriate'' placements that 
serve their ``best interests'' with providers who are ``prepared 
adequately with appropriate knowledge and skills'' do not authorize ACF 
to impose the specific requirements of the proposed rule. They describe 
the statutory requirements that ACF relies on as ``generalized 
provisions.'' In addition, these commenters argued that state family 
laws generally view the best interest of the child standard as flexible 
and fact-specific in determining appropriate placements, and that 
Congress did not intend ``to grant HHS this federal veto power over 
children's placements.''
    Response: ACF disagrees that this rule exceeds ACF's statutory 
authority under titles IV-B and IV-E of the Social Security Act. The 
rule is consistent with the authority granted to ACF in the statutory 
provisions cited in the Legal Authority for the Final Rule section of 
this preamble, which promote the wellbeing and safety of children in 
foster care:

--Titles IV-E and IV-B of the Social Security Act (the Act) require 
title IV-E/IV-B agencies to provide case plans for all children in 
foster care that include a plan for assuring that the child receives 
safe and proper care and that services are provided to the parents, 
child, and foster parents in order to improve the conditions in the 
parents' home, facilitate return of the child to his own safe home 
or the permanent placement of the child, and address the needs of 
the child while in foster care, including discussion of the 
appropriateness of the services that have been provided to the child 
under the plan. Section 475(1)(B) of the Social Security Act, 42 
U.S.C. 675(1)(B).
--Agencies must also have case review systems through which they 
ensure that each foster child's case plan is ``designed to achieve 
placement in a safe setting that is the least restrictive (most 
family like) and most appropriate setting available and in close 
proximity to the parents' home, consistent with the best interest 
and special needs of the child[.]'' Section 475(5) of the Social 
Security Act, 42 U.S.C. 675(5)(A). In order to receive title IV-E 
and IV-B funds, agencies must have plans approved by ACF that 
provide for case plans and case review systems that meet these 
statutory requirements. Sections 471(a)(16) and 422(b) of the Social 
Security Act, 42 U.S.C. 671(a)(16) and 622(b).
--States and tribes must certify in their title IV-E plans that they 
will ensure that before a child in foster care is placed with 
prospective foster parents, the prospective foster parents ``will be 
prepared adequately with the appropriate knowledge and skills to 
provide for the needs of the child [and] that the preparation will 
be continued, as necessary, after the placement of the child.'' 
Section 471(a)(24) of the Social Security Act, 42 U.S.C. 671(a)(24).
--Agencies must ensure that foster parents, as well as at least one 
official at any child care institution providing foster care, 
receive training on how to use and apply the ``reasonable and 
prudent parent standard,'' a standard characterized by careful and 
sensible parental decisions that maintain the health, safety, and 
best interests of a child while at the same time encouraging the 
emotional and developmental growth of the child, that a caregiver 
shall use when determining whether to allow a child in foster care 
under the responsibility of the State to participate in 
extracurricular, enrichment, cultural, and social activities. Social 
Security Act 471(a)(24) and (a)(10) and 475(10)(A), 42 U.S.C. 
671(a)(24) and (a)(10) and 675(10)(A).
--Agencies must develop and implement standards to ensure that 
children in foster care placements are provided quality services 
that protect their safety and health. Social Security Act section 
471(a)(22), 42 U.S.C. 671(a)(22).
--The Act authorizes the Secretary to review state compliance with 
the title IV-E and IV-B program requirements. Specifically, the Act 
requires the Secretary to determine whether state programs are in 
substantial conformity with state plan requirements under titles IV-
E and IV-B, implementing regulations promulgated by the Secretary 
and the states' approved state plans. Section 1123A of the Social 
Security Act, 42 U.S.C. 1320a-2a.

    As explained in detail in the NPRM, at 45 CFR 1355.22, we implement 
these statutory requirements for safe and proper care, placement in 
appropriate settings, appropriate and quality services, and adequate 
preparation of placement providers by requiring that LGBTQI+ children 
must be offered placements with providers who are committed to 
establishing an environment that supports their LGBTQI+ status or 
identity, trained to provide for their needs, and will facilitate their 
access to appropriate services that support their health and well-
being. We further implement these statutory requirements by requiring 
that LGBTQI+ children must be provided with supportive services, 
protected from retaliation on the basis of their LGBTQI+ identity or 
status, and have their privacy protected. 42 U.S.C. 675(1)(B) and (5). 
For transgender and gender non-conforming children, we implement the 
statutory requirement for appropriate placements by requiring that they 
be offered placements consistent with their gender identity. ACF came 
to these conclusions based on our careful and thorough review of the 
evidence regarding LGBTQI+ children in foster care, as described in 
section II of the preamble.
    Commenters cite a Federal district court decision, Shane v. Cnty. 
of San Diego, in support of their position. 677 F. Supp. 3d 1127, 1140 
(S.D. Cal. 2023). However, that case does not address ACF's statutory 
authority. Instead, it addresses the standard under the doctrine of 
qualified immunity for holding a state government officer liable for 
money damages based on an alleged deprivation of a Federal right. Such 
cases may proceed only where the Federal right at issue is ``clearly 
established'' in case law. In Shane, the district court concluded that 
the state

[[Page 34851]]

government officers could not be held liable for their alleged failure 
to include adequate mental health and substance abuse protocols in the 
child's case plan because ``the Court has not identified any case law 
that establishes that a case plan must contain this level of 
specificity.'' Id. At 1140. (S.D. Cal. 2023). The court continued, 
``[n]either the Ninth Circuit nor other circuits have otherwise 
examined what specific treatments need to be included in a case plan to 
be compliant with the CWA [Adoption Assistance and Child Welfare Act of 
1980].'' Id. The district court's conclusion that existing caselaw had 
not addressed ``what specific treatments need to be included in a case 
plan'' (Id.) to comply with IV-B and IV-E is not relevant to this 
rulemaking. The lack of caselaw addressing a specific question 
regarding interpretation of the IV-E statute does not in any way limit 
ACF's ability to promulgate regulations interpreting and implementing 
the statute. With this rule, ACF specifies how the statutory ``case 
plan'' and ``case review'' requirements apply for LGBTQI+ foster 
children.
    Regarding commenters' assertion that state family laws generally 
view the best interest of the child standard as flexible and fact-
specific in determining appropriate placements, this rule does not 
prevent states or tribes from complying with their own state or tribal 
laws and policies regarding the best interest of the child in making 
placement decisions unless those laws or policies directly conflict 
with the requirements of the rule. ACF expects that title IV-E/IV-B 
agencies will continue to consider the many factors (such as kinship 
relationship, proximity to the child's school, etc.) that go into 
determining the most appropriate placement for a child. ACF recognizes 
and values the important role child welfare agencies play in balancing 
multiple needs to identify the most appropriate placement for each 
foster child. This rule simply clarifies that, for LGBTQI+ foster 
children, the statutory case plan and case review requirements require 
access to a placement that is supportive of their LGBTQI+ status or 
identity.

Arbitrary and Capricious

    Comment: Some state attorneys general commented that the proposed 
rule is arbitrary and capricious. They cite Motor Vehicle Mfrs. Ass'n 
v. State Farm Mut. Auto. Ins. Co. for the principle that ``[a]gency 
analysis cannot `run[ ] counter to the evidence before the agency,' 
must show a `rational connection between the facts found and the choice 
made,' and needs to `consider' all `important aspect[s] of the problem' 
the agency is addressing. 463 U.S. 29, 43 (1983) (citation omitted).'' 
Commenters argue that the agency did not sufficiently consider 
``countervailing consequences'' of its proposed approach, including the 
additional bureaucratic requirements it creates, the cost of complying 
with the mandates, the risk that foster care providers would be subject 
to retaliation claims, the likelihood of providers leaving the system 
as a result, the increase in likelihood that children would have to 
move multiple times while in foster care and that requiring urgent 
investigations of complaints about placements would take resources away 
from physical abuse investigations. Commenters also argued that the 
rule would endanger children through its requirement for youth to be 
offered a placement consistent with their gender identity. Commenters 
also argued that the cost estimate is unrealistically low. Commenters 
also argued that the rule does not offer sufficient evidence to show 
that LGBTQI+ youth are overrepresented in foster care or have worse 
outcomes or experiences while in care.
    Response: ACF has carefully considered all important aspects of 
this rule, including the possibility that it may have unintended 
negative consequences, consistent with the requirements of Motor 
Vehicle Mfrs., 463 U.S. 29. ACF has explained its consideration of the 
factors that commenters cite here in its discussion in the preamble in 
the discussion of regulatory provisions in Section III. ACF also 
considered alternatives like sub-regulatory guidance in the Regulatory 
Impact Analysis below. Based on its careful consideration of these 
factors, among many others discussed in the proposed rule and this 
final rule, ACF has concluded that the final rule is supported by the 
weight of the evidence before the agency specifically related to 
wellbeing of children being served in foster care.

Spending Clause

    Comment: Some state attorneys general commented that they believe 
that the proposed rule violates the Spending Clause of the U.S. 
Constitution. They argue that caselaw requires that ``if Congress 
intends to impose a condition on the grant of federal moneys, it must 
do so unambiguously.'' Pennhurst State Sch. & Hosp. v. Halderman, 451 
U.S. 1, 17 (1981). In their opinion, the IV-E and IV-B statutes do not 
authorize HHS to impose the requirements of this rule on state child 
welfare agencies.
    Response: The IV-E and IV-B statutes are explicit that states and 
tribes may only qualify for IV-E and IV-B funding if they meet the 
statutory state plan requirements, described at 42 U.S.C. 671 and 622, 
which include the requirements to:

--Operate case review systems that assure that ``each child has a case 
plan designed to achieve placement in a safe setting that is the least 
restrictive (most family like) and most appropriate setting available 
and in close proximity to the parents' home, consistent with the best 
interest and special needs of the child[.]'' 42 U.S.C. 675(5), 
incorporated as a IV-E state plan requirement by 42 U.S.C. 671(a)(16) 
and as a IV-B state plan requirement by 42 U.S.C. 622(b)(8)(B).
--Ensure that case plans include a plan for assuring that the child 
receives safe and proper care and that services are provided to the 
parents, child, and foster parents in order to improve the conditions 
in the parents' home, facilitate return of the child to his own safe 
home or the permanent placement of the child, and address the needs of 
the child while in foster care, including a discussion of the 
appropriateness of the services that have been provided to the child 
under the plan. 42 U.S.C. 675(1)(B).
--Include a certification that, before a child in foster care under the 
responsibility of the State is placed with prospective foster parents, 
the prospective foster parents will be prepared adequately with the 
appropriate knowledge and skills to provide for the needs of the child, 
that the preparation will be continued, as necessary, after the 
placement of the child, and that the preparation shall include 
knowledge and skills relating to the reasonable and prudent parent 
standard for the participation of the child in age or developmentally-
appropriate activities, including knowledge and skills relating to the 
developmental stages of the cognitive, emotional, physical, and 
behavioral capacities of a child, and knowledge and skills relating to 
applying the standard to decisions such as whether to allow the child 
to engage in social, extracurricular, enrichment, cultural, and social 
activities. 42 U.S.C. 671(a)(24).
--As a condition of each contract entered into by a child care 
institution to provide foster care, ensure the presence on-site of at 
least 1 official who, with respect to any child placed at the child 
care institution, is designated to be the caregiver who is authorized 
to apply the reasonable

[[Page 34852]]

and prudent parent standard to decisions involving the participation of 
the child in age or developmentally-appropriate activities, and who is 
provided with training in how to use and apply the reasonable and 
prudent parent standard in the same manner as prospective foster 
parents are provided the training pursuant to 42 U.S.C. 671(a)(24). 42 
U.S.C. 671(a)(10).
    Congress has expressly authorized the Secretary to ``make and 
publish such rules and regulations . . . as may be necessary to the 
efficient administration of the functions with which [the Secretary] is 
charged under [the Social Security Act].'' 42 U.S.C. 1302. This rule is 
necessary for the Secretary to fulfill his responsibility to ensure 
that child welfare agencies receiving IV-B and/or IV-E funding meet, 
for LGBTQI+ children in their care, the statutory mandates described 
above, including those to provide ``safe and proper care'' and 
``appropriate'' placements.
    ACF notes that the Supreme Court has held Congress need not in 
statute ``prospectively resolve every possible ambiguity concerning 
particular applications of the requirements of'' a spending program. 
Bennett v. Kentucky Dep't of Education, 470 U.S. 656, 669 (1985); see 
also Mayweather v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) 
(``Congress is not required to list every factual instance in which a 
state will fail to comply with a condition. Such specificity would 
prove too onerous, and perhaps, impossible. Congress must, however, 
make the existence of the condition itself--in exchange for the receipt 
of federal funds--explicitly obvious.'') There is no question that the 
IV-B and IV-E statutes make explicitly obvious that states and tribes 
must comply with the IV-B and IV-E state plan requirements, including 
those related to case plans and case reviews, in order to qualify for 
Federal IV-B and IV-E funds.

Federalism Principles

    Comment: Some state attorneys general and some members of Congress 
commented that they believe the proposed rule violates federalism 
principles. They stated that ``the U.S. Constitution leaves significant 
swaths of family, health, and safety regulation to the States' exercise 
of their constitutionally reserved police powers'' and argue that the 
proposed rule would shift the balance of power from states to the 
Federal Government. Commenters' primary concern is that the rule may 
preempt state laws limiting the availability of gender-affirming 
medical care for minors.
    Response: ACF disagrees that this rule violates federalism 
principles. As discussed in the response directly above, the rule 
implements Federal statutory terms regarding the care title IV-E/IV-B 
agencies must provide to LGBTQI+ foster children in order to qualify 
for the Federal IV-B and IV-E financial assistance programs. The rule 
does not preempt state laws regarding gender-affirming medical care for 
minors generally. Thus, where the rule requires states to ensure that 
LGBTQI+ children have access to age- or developmentally appropriate 
services that are supportive of their sexual orientation and gender 
identity or expression, including clinically appropriate mental and 
behavioral health supports, it requires access only to those services 
and supports that are lawful in the state. When a state accepts funds 
under the title IV-E/IV-B program, it agrees to provide safe and proper 
care to children within the system funded by that program. This rule 
merely elaborates on what is necessary to provide such care in the 
specific context of LGBTQI+ children in that program. It does not 
preempt or require any change to state laws regulating medical care 
generally.

Nondelegation Doctrine

    Comment: Some state attorneys general commented that they believe 
that the proposed rule violates the nondelegation doctrine of the U.S. 
Constitution. They stated that ``the nondelegation doctrine requires 
Congress to `lay down' an `intelligible principle' in an authorizing 
statute for the agency to follow. Mistretta v. United States, 488 U.S. 
361, 372 (1989) (citation omitted). They then argued that the proposed 
rule's expansive interpretation of HHS's statutory authority ``cannot 
be squared with this foundational constitutional check. In HHS's view, 
the open-ended terms `safe and proper care' and `best interests and 
special needs of the child' are empty vessels waiting to enshrine any 
number of highly controversial requirements favored by federal agency 
heads.''
    Response: ACF disagrees that this rule violates the nondelegation 
doctrine. Congress does not violate the nondelegation doctrine merely 
because it legislates in broad terms and leaves a certain degree of 
discretion to an executive agency, so long as Congress sets forth--as 
commenters acknowledged--``an intelligible principle'' to which the 
agency must conform. The Supreme Court has routinely upheld delegations 
to the Executive Branch ``under standards phrased in sweeping terms.'' 
See Loving v. U.S., 517 U.S. 748, 771 (1996). Congress may permissibly 
delegate authority to the Executive Branch to regulate in a manner that 
is necessary to adhere to policy objectives in a statute. See also 
Consumers' Rsch. v. Fed. Commc'ns Comm'n (``The intelligible-principle 
test has long recognized `that in our increasingly complex society, 
replete with ever changing and more technical problems, Congress simply 
cannot do its job absent an ability to delegate power under broad 
general directives.' [Mistretta, 488 U.S.] at 372, 109 S.Ct. 647; 
Gundy, 139 S. Ct. at 2123 (explaining that the Court's holdings 
recognize these considerations `time and again').'' 67 F.4th 773, 787 
(6th Cir. 2023)\.)\.
    Congress here has charged the Secretary with ensuring that states 
and tribes operate case review systems in which ``each [foster] child 
has a case plan designed to achieve placement in a safe setting that is 
the least restrictive (most family like) and most appropriate setting 
available and in close proximity to the parents' home, consistent with 
the best interest and special needs of the child.'' 42 U.S.C. 675(5), 
671(a)(16), 622(b)(8)(A)(ii). The case plan must also include a plan 
for assuring that each child receives ``safe and proper care'' 42 
U.S.C. 675(1)(B). In addition, Congress has charged the Secretary with 
``promulgat[ing] regulations for the review of [state IV-B and IV-E] 
programs to determine whether such programs are in substantial 
conformity with--State plan requirements under such parts B and E.'' 42 
U.S.C. 1320a-2a(a). Those regulations must, among other things, 
describe ``the criteria to be used to measure conformity with such 
requirements and to determine whether there is a substantial failure to 
so conform.'' 42 U.S.C. 1320a-2a(b)(2) These portions of the statute, 
and others described in the Legal Authority for the Final Rule section 
of this preamble, provide the ``intelligible principle'' necessary for 
ACF to promulgate these regulations.
    In a district court case, CompRehab Wellness Grp., Inc. v. 
Sebelius, No. 11-23377-CIV, 2013 WL 1827675 (S.D. Fla. Apr. 30, 2013), 
the court upheld against a nondelegation challenge a regulation 
promulgated pursuant to the Social Security Act's grant of rulemaking 
authority to the Secretary, which authorizes the Secretary to ``make 
and publish such rules and regulations . . . as may be necessary to the 
efficient administration of the functions with which [the Secretary] is 
charged under [the Social Security Act].'' 42 U.S.C.

[[Page 34853]]

1302. In finding the Social Security Act's grant of rulemaking 
authority to provide the necessary ``intelligible principle,'' the 
court stated that ``Essentially, what [the plaintiff] seeks is the 
invalidation of a statute granting authority to a named agency to 
regulate an identified federal program using statutory language well 
within the bounds of what has already been deemed constitutional.'' Id. 
at 6.
    Although Congress has delegated authority ``from the beginning of 
the government,'' Big Time Vapes, Inc. v. FDA, 963 F.3d 436, 442 (5th 
Cir. 2020) (quoting United States v. Grimaud, 220 U.S. 506, 517 
(1911)), ``[o]n only two occasions--both in 1935 as part of its 
resistance to New Deal legislation--has the Court found a violation of 
the nondelegation doctrine,'' Allstates Refractory Contractors, LLC v. 
Su, 79 F.4th 755, 762 (6th Cir. 2023). One of those statutory 
provisions ``provided literally no guidance for the exercise of 
discretion,'' and the other ``conferred authority to regulate the 
entire economy on the basis of no more precise a standard than 
stimulating the economy by assuring `fair competition.' '' Whitman v. 
Am. Trucking Ass'ns, 531 U.S. 457, 474 (2001) (citing Panama Refin. Co. 
v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United 
States, 295 U.S. 495 (1935)). By contrast, in the almost 90 years 
since, the Supreme Court has consistently upheld ``Congress' ability to 
delegate power under broad standards,'' Mistretta, 488 U.S. at 373, and 
``ha[s] `almost never felt qualified to second-guess Congress regarding 
the permissible degree of policy judgment that can be left to those 
executing or applying the law,' '' Am. Trucking, 531 U.S. at 474-75 
(quoting Mistretta, 488 U.S. at 416 (Scalia, J., dissenting).

Major Questions Doctrine

    Comment: Some state attorneys general commented that they believe 
that the proposed rule violates the major questions doctrine of the 
U.S. Constitution. Commenters argue that the proposed rule ``raises 
controversial questions of vast `political significance,' yet does not 
reflect the type of clear congressional authorization the major-
questions doctrine requires. West Virginia v. EPA, 142 S. Ct. 2587, 
2613 (2022) (quoting FDA v. Brown & Williamson, 529 U.S. 120, 160 
(2000)).'' They specifically refer to the requirement in the proposed 
rule for children to be offered a placement consistent with their 
gender identity if they are being placed in child care institutions, 
arguing that ``this mandate overrides state policies governing sex-
segregated childcare institutions, which heed the privacy and safety 
interests in maintaining sex-segregated spaces--particularly for 
children.''
    Response: ACF disagrees that this rule violates the major questions 
doctrine. This rule does not address matters of ``exceptional economic 
and political significance,'' which would be necessary for the major 
questions doctrine to apply. Courts have held the major questions 
doctrine to apply where a regulation imposes extremely large costs or 
has far-reaching effects on areas outside of the agency's traditional 
regulatory domain. (See e.g., Biden v. Nebraska, 143 S. Ct. 2355, 2358 
(2023), overturning the Department of Education's rule that would 
``establish a student loan forgiveness program that will cancel about 
$430 billion in debt principal and affect nearly all borrowers,'' and 
W. Virginia v. Env't Prot. Agency, 597 U.S. 697, 724 (2022), 
overturning an EPA rule that would ``empower[] it to substantially 
restructure the American energy market.'')
    This rule has no such exceptional reach. It implements ACF's core 
responsibility to promote the wellbeing of foster children in programs 
that receive Federal funding through requiring state and tribal 
compliance with titles IV-B and IV-E of the Social Security Act. 
Commenters do not point to any aspects of the rule which they believe 
are of ``exceptional economic significance.'' With regard to 
``exceptional political significance,'' the only section they 
specifically point to is the requirement for child welfare agencies to 
place transgender and gender nonconforming youth consistent with their 
gender identity.\44\ That requirement is not of ``exceptional political 
significance.''
---------------------------------------------------------------------------

    \44\ Note that the proposed rule applied the requirement for 
transgender and gender non-conforming children to be offered 
placements consistent with their gender identity to congregate care 
placements, whereas the final rule makes the requirement applicable 
to all placements.
---------------------------------------------------------------------------

    Rather, it simply clarifies, for LGBTQI+ children in foster care, 
the IV-E statutory requirements to place foster children in ``a safe 
setting that is the . . . most appropriate setting available . . . 
consistent with the best interest and special needs of the child.'' 42 
U.S.C. 675(5). This is not a ``transformative expansion in [ACF's] 
regulatory authority,'' but simply a clarification of how to apply a 
longstanding statutory requirement to a specific subset of children in 
foster care. See W. Virginia v. Env't Prot. Agency, 597 U.S. 697, 724 
(2022). The requirement to offer children a placement that is 
consistent with their gender identity is based on ACF's careful 
consideration of current research on best practices to promote the 
health and safety of such youth, as described in the Background of the 
preamble. This regulatory requirement does not preempt state or tribal 
laws regarding sex-segregated child care institutions. If a state law 
prohibits placement in sex-segregated institutions based on gender 
identity, then the title IV-E/IV-B agency should explore all other 
placement options in order to offer a foster child a placement 
consistent with their gender identity, while also meeting the child's 
other particular needs.

Fulton v. City of Philadelphia

    Comment: Many commenters stated that the proposed rule 
impermissibly attempts to bypass the ruling in Fulton v. City of 
Philadelphia, 593 U.S. 522 (2021), by placing obligations on states 
instead of directly placing them on providers. Commenters said that the 
Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb et seq., and 
state-level RFRA laws cannot be circumvented merely by making states do 
the work of foster care provider. The commenter said that foster 
families of faith will be negatively affected by the proposed rule. 
Similarly, a group of commenters said that the rule attempts to bypass 
and shift responsibility for compliance with Fulton and will not 
survive a court challenge.
    Response: The proposed rule and this final rule do not circumvent 
RFRA or otherwise undermine or attempt to bypass the Supreme Court's 
ruling in Fulton v. Philadelphia. Rather, the rule, as proposed and 
adopted, primarily imposes obligation on states and tribes because 
Titles IV-E and IV-B of the Social Security Act allocate funding to 
states and tribes to administer Child Welfare programs. Consequently, 
when obligations in this rule are imposed on states and tribes, that 
designation of responsibility is in keeping with the structure of the 
program.
    ACF does not believe that administration of this rule will cause 
states or tribes to undertake any measures that violate Fulton, the 
Constitution, or Federal laws that support and protect religious 
exercise and freedom of conscience such as RFRA, applicable Federal 
civil rights laws or HHS regulations including 45 CFR part 87 (``Equal 
Treatment for Faith-Based Organizations''). As explained in the 
preamble to the NPRM, a provider may submit a request for religious 
accommodation regarding any requirement of this rule to the state or 
tribe, which must promptly forward the

[[Page 34854]]

request to ACF. We will then evaluate the request to determine whether 
an exemption is appropriate under the standards of the Constitution, 
RFRA, and any other applicable law.

V. Implementation Timeframe

    We received comments expressing concerns that the provisions in the 
rule added a layer of bureaucracy and/or burden on child welfare 
agencies. ACF acknowledges that there will be additional costs placed 
on state and tribal title IV-E/IV-B agencies. Therefore, ACF is 
providing more than two fiscal years for state and tribal title IV-E/
IV-B agencies to implement the provisions of this final rule on or 
before October 1, 2026. We added Sec.  1355.22(l) accordingly.

VI. Regulatory Impact Analysis

Executive Orders 12866, 13563 and 14094

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 is supplemental to, and reaffirms the principles, 
structures, and definitions governing regulatory review as established 
in Executive Order 12866, emphasizing the importance of quantifying 
both costs and benefits, of reducing costs, of harmonizing rules, and 
of promoting flexibility. Section 3(f) of Executive Order 12866, as 
amended by Executive Order 14094, defines ``a significant regulatory 
action'' as an action that is likely to result in a rule that may: (1) 
have an annual effect on the economy of $200 million or more (adjusted 
every 3 years by the Administrator of the Office of Information and 
Regulatory Affairs (OIRA) for changes in gross domestic product), or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, territorial, or tribal governments 
or communities; (2) create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency; (3) 
materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs, or the rights and obligations of recipients 
thereof; or (4) raise legal or policy issues for which centralized 
review would meaningfully further the President's priorities or the 
principles set forth in the order. OIRA has determined that this rule 
does meet the criteria for a significant regulatory action under 
section 3(f) of Executive Order 12866. Thus, it was subject to Office 
of Management and Budget (OMB) review.

Costs and Benefits

    The benefits of this final rule are that placing children in foster 
care with providers the agencies consider Designated Placements for 
LGBTQI+ children will reduce the negative experiences of such children 
by allowing them to have access to needed care and services and to be 
placed in nurturing placement settings with caregivers who have 
received appropriate training. Ensuring such placements may also reduce 
LGBTQI+ foster children's high rates of negative health outcomes, 
homelessness, housing instability and food insecurity. This rule 
promotes a supportive environment for LGBTQI+ children in foster care.
    ACF acknowledges that there will be a cost to implement changes 
made by this rule as we anticipate that a majority of states and tribes 
would need to expand their efforts to recruit and identify providers 
and foster families that the state or tribe could identify as 
Designated Placements for LGBTQI+ children. This cost would vary 
depending on an agency's available resources to implement the rule.

Alternatives Considered

    As an alternative to this final rule, ACF considered providing sub-
regulatory guidance requiring agencies to implement the provisions of 
the final rule for LGBTQI+. However, this alternative was rejected 
because it would not have the force of law and thus could not 
effectively ensure that LGBTQI+ children and youth in foster care 
receive Designated Placements and services. ACF has already provided 
extensive resources and sub-regulatory guidance to agencies about 
improving the health and wellbeing of LGBTQI+ children in foster care, 
but those resources alone have not been sufficient to ensure that 
LGBTQI+ youth are protected from mistreatment in foster care.

Regulatory Flexibility Analysis

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

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act (Pub. L. 104-4) requires agencies 
to prepare an assessment of anticipated costs and benefits before 
finalizing any rule that may result in an annual expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more (adjusted annually for inflation). In 
2023, that threshold is approximately $183 million. This rule does not 
contain mandates that will impose spending costs on state, local, or 
tribal governments in the aggregate, or on the private sector, in 
excess of the threshold.

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). OMB's Office of Information and Regulatory 
Affairs has determined that this final rule does not meet the criteria 
set forth in 5 U.S.C. 804(2).

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Omnibus Consolidated and Emergency Supplemental 
Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to 
determine whether a policy or regulation may affect family well-being. 
If the agency's determination is affirmative, then the agency must 
prepare an impact assessment addressing seven criteria specified in the 
law. This rule will not have an impact on family well-being as defined 
in the law.

Executive Order 13132 on Federalism

    Executive Order (E.O.) 13132 requires that Federal agencies, ``to 
the extent practicable and permitted by law,'' consult with state and 
local government officials in the development of regulatory policies 
with federalism

[[Page 34855]]

implications. Consistent with E.O. 13132 and Guidance for Implementing 
E.O. 13132 issued on October 28, 1999, for rules with federalism 
implications, the Department must include in ``a separately identified 
portion of the preamble to the regulation'' a ``federalism summary 
impact statement'' (secs. 6(b)(2)(B) & (c)(2)). In the NPRM, ACF stated 
the proposed rule would not have substantial direct impact on the 
relationship between the Federal Government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government. However, we anticipated that the proposed rule would have a 
substantial direct impact on the cost that title IV-E agencies would 
incur to implement administrative procedures and recruit and train 
their workforce and providers. Accordingly, ACF included a federalism 
summary impact statement in the preamble to the NPRM. In that 
statement, ACF wrote ``To inform the final rule, ACF will seek to 
further consult with state and local governments and request that such 
governments provide comments on provisions in the proposed rule and on 
whether state and local governments are likely to incur additional 
substantial costs.''
    The Department's federalism summary impact statement for the final 
rule is as follows--``A description of the extent of the agency's prior 
consultation with state and local officials''--
    The public comment period for the NPRM was open for 60 days and 
closed on November 27, 2023. During this time, we solicited comments 
via regulations.gov and email. During this comment period, we held two 
informational calls on October 11 and 30, 2023, for states, Indian 
tribes, and the public. During these calls, we provided an overview of 
the proposed provisions and where to submit comments.
    ``A summary of the nature of their concerns and the agency's 
position supporting the need to issue the regulation''--
    As we discussed in the preamble to this final rule, some government 
entity commenters expressed support and appreciation for the efforts of 
HHS to establish protections for LGBTQI+ youth in foster care. Other 
government entity commenters opposed the rule and stated generally a 
belief that the NPRM creates a separate and distinct process for 
LGBTQI+ youth that violates privacy, and raised concerns related to 
religious beliefs of providers. Government entity critics of the NPRM 
also argued that it creates a ``cumbersome fix'' for a problem that 
lacks clear definition while states are currently having issues finding 
enough providers for all children in foster care. They also argued that 
the NPRM's provisions would disincentivize families from serving as 
foster parent providers and would ``drive individuals and organizations 
of faith away.'' They also expressed concerns that most congregate care 
providers are not currently equipped to meet the provisions around 
placing children according to their gender identity. Finally, there 
were objections to what they saw as unfunded burdens on the agencies to 
develop new trainings, modify licensing and placement rules, and 
revisions to case management systems to track placements, 
notifications, and other requirements in the NPRM. The state AG letters 
raised legal concerns that the NPRM violates various statutory and 
constitutional requirements; these concerns are addressed in section IV 
of this preamble.
    ``A statement of the extent to which the concerns of state and 
local officials have been met'' (secs. 6(b)(2)(B) and 6(c)(2))--
    As we discussed in the preamble to this final rule, safe and 
appropriate placements are a requirement for all children in foster 
care. This final rule simply clarifies that requirement for LGBTQI+ 
children and preserves substantial state discretion consistent with 
that requirement.

Paperwork Reduction Act

    This final rule does not contain additional information collection 
requirements (ICRs) subject to review by the OMB under the Paperwork 
Reduction Act of 1995 (PRA), 44 U.S.C. 3501-3520. Information 
collection requirements for case plans required under title IV-E and 
IV-B are currently authorized under OMB number #0970-0428. This rule 
does not require changes to the existing information collection as 
there will be minimal burden associated with the proposed case plan 
requirements. Any additional costs would be minimal because agencies 
are already required to provide case review protections to children in 
foster care, and the rule provides more specificity for an LGBTQI+ 
child. While agencies will need to develop policies to comply with some 
of the provisions in the rule, the casework to provide safe placements, 
consult with children, and notify them of the procedures for reporting 
concerns or requests for placement changes are part of the agency's 
ongoing work with a child in foster care.
    Information collection for the CFSR is currently authorized under 
OMB # is 0970-0214 and no changes are needed to that collection as this 
rule does not significantly change or add burden to the requirements. 
The CFSR already includes the review of case plan requirements for safe 
and appropriate placements for all children in foster care.

Annualized Cost to the Federal Government

    ACF estimated that the proposed regulatory changes would cost the 
Federal Government $10,827,381 over a three fiscal year (2027-2029) 
period. ACF estimated that the combined total Federal and agency costs 
over three fiscal years would be $45,743,070.
    The estimate for this final rule was derived using fiscal year (FY) 
2021 data from the Adoption and Foster Care Analysis and Reporting 
System (AFCARS) on children in foster care, FY 2022 claiming data from 
the Form CB-496 ``Title IV-E Programs Quarterly Financial Report 
(Foster Care, Adoption Assistance, Guardianship Assistance, Prevention 
Services and Kinship Navigator Programs),'' National Child Abuse and 
Neglect Data System (NCANDS) child protection caseworker data collected 
between FY 2003 and FY 2014, state surveys, and the U.S. Department of 
Labor Bureau of Labor Statistics (BLS).
    The portions of this final rule's requirements determined to have 
an identifiable impact on title IV-E/IV-B agency costs were as follows:
     To comply with the requirement that all LGBTQI+ children 
in foster care have access to a designated placement, agencies will 
likely need to increase the recruitment of providers who are qualified 
to provide safe and appropriate affirming care.
     Training agency caseworkers and supervisors on the 
procedural requirements in the final rule and on how to adequately 
serve LGBTQI+ foster children, and training placement providers seeking 
to become designated as a designated placement provider on how to meet 
the needs of LGBTQI+ children in foster care, as required in the 
proposal.
    Assumptions: ACF made several assumptions when calculating 
administrative and training costs for this rule.
    ACF assumes that quantifiable incremental costs with respect to the 
above activities will largely be incurred on behalf of children in 
foster care who are age 14 and older. ACF expects the population of 
children under age 14 who meet the proposed requirements of

[[Page 34856]]

paragraph (b)(2)(i)(A) or (B) to be relatively small, and therefore not 
likely to have a significant impact on cost. We are, however, 
accounting for the cost to recruit and train sufficient Designated 
Placement providers to serve all children in need of such a placement 
regardless of age. This is accomplished by calculating recruitment and 
training costs using the maximum expected level of designated placement 
needs for children ages 4 and older.
    We assume that states and tribes will not be able to use title IV-B 
funding to implement this final rule. Children in foster care who are 
not title IV-E eligible are also subject to the proposed requirements 
based on the proposed rule's applicability to title IV-E and IV-B 
agencies. Title IV-B funding is available for 75 percent Federal 
financial participation (FFP) for recruitment and training of placement 
providers (section 424(a) of the Social Security Act). However, those 
funds are limited to an annual allotment provided to each title IV-B 
agency. Therefore, we assume agencies will likely need to cover 100 
percent of the Designated Placement provision costs on behalf of non-
title IV-E eligible children in foster care.
    ACF assumes an overall annual one percent caseload growth rate in 
the foster care population based on our current title IV-E budgetary 
projections. Since this final rule focuses on older children in foster 
care, we increased this growth rate slightly (to an average of 1.4 
percent annually) to consider an expected further growth in the age 18 
and older foster care population, as more states opt to extend foster 
care through age 20.
    This final rule will become effective at the beginning of FY 2027 
and thus will apply to the entire population of children in foster care 
who are age 14 and older in that FY. ACF assumes that although 
implementation can begin earlier, the majority of incremental costs 
will be for the activities occurring in FY 2027. We expect costs in FYs 
2028 and 2029 to be about half of those for FY 2027 since the required 
activities will affect primarily those children in care who are turning 
age 14 in the FY, or who are newly entering care at age 14 and older. 
It is possible that more of the costs will be concentrated in FY 2028, 
rather than FY 2029, if implementation occurs at a more accelerated 
pace. After the third year of implementation, we anticipate that 
incremental costs will largely be eliminated as available Designated 
Placement providers are recruited and the policies, procedures, and 
training requirements are implemented.
    Federal cost estimate for implementation of Designated Placements: 
The table below displays the individual calculations by line. All 
entries in the table 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 in foster care (FC). Line 1 of 
the table below displays the actual number of children in FC at the 
beginning of FY 2022 (baseline), which was 391,098. Line 1 also 
displays estimates of the annual number of children in FC in the 
subsequent FYs 2027, 2028, and 2029.
    Line 2. National number of children in FC age 14 and older. Line 2 
of the table below displays the actual number of children in FC who 
were age 14 and older at the beginning of FY 2022 (baseline) which was 
92,852. We also provide estimates of the number of children in FC age 
14 and older in the following subsequent FYs 2027, 2028, and 2029. In 
2029 the caseload is estimated at 105,423.
    Line 3. National average monthly number of children in title IV-E 
FC age 14 and older. Line 3 of the table below displays the actual 
number of title IV-E eligible children in FC age 14 or older at the 
beginning of FY 2022 (baseline), which was 36,817. This number is 
calculated by applying the percentage of all children in FC (title IV-E 
and non-IV-E eligible) that are age 14 or older to the reported count 
of title IV-E eligible children receiving FC administrative cost 
services. For example, in FY 2022 the title IV-E FC caseload for 
administrative costs was 155,075 and the percentage of all children in 
FC who were age 14 or older was 23.74 percent. Therefore, the 
calculated count of title IV-E eligible children in FC age 12 and older 
is 36,817 (155,075 x 23.74%). We also provide estimates of the number 
of children in FC age 14 and older in the following subsequent years: 
FYs 2027, 2028, and 2029.
    Line 4. National number of children to be notified of Designated 
Placement requirements. Line 4 of the table below provides an estimate 
of the number of children in FC who must be notified of the Designated 
Placement provisions in proposed Sec.  1355.22(a)(2)(i). For the first 
year of implementation (FY 2027) this number is the same as the Line 2 
number (national number of children in foster care age 14 and older) 
since all of these children are required to be so notified. For FYs 
2028 and 2029, we multiplied the national number of children in FC age 
14 and older (Line 2) by the proportion of this population that entered 
care in that FY based on baseline year AFCARS data showing 40.64 
percent. This step avoids counting children that are likely to have 
already received the notification in a prior FY. For example, in FY 
2029 the national number of children that must be notified of 
Designated Placement requirements is 42,846 (105,423 (Line 2) x 40.64% 
(Line 4) = 42,846).
    Line 5. Percentage of national foster care placements for children 
needing Designated Placements. Line 5 of the table below displays the 
estimated percentage of national foster care Designated Placements 
needed for children who identify as LGBTQI+. For each FY, we divided 
the number of children in foster care ages 14 and older (Line 4) by the 
expected total annual number of children entering foster care. Data 
available through surveys shows that about 30 percent of older children 
in foster care identify as LGBTQI+. An analysis of data collected from 
2013-2015 in the California Health Kids Survey found that 30.4 percent 
of foster youth aged 10-18 identify as LGBTQ+.\45\ Similarly, a 2021 
study of foster children ages 12 through 21 in Cuyahoga County, Ohio, 
found that 32 percent identified as LGBTQI+.\46\ For the purposes of 
this cost estimate, ACF's estimate of children age 14 and over in 
foster care who identify as LGBTQI+ is 30 percent. For example, in FY 
2027 on Line 4, the national number of children to be notified of 
Designated Placement provisions is 103,423 and the base year total 
foster care entries is 206,812. ACF estimated 30 percent of older 
children in foster care identify as LGBTQI+. Therefore, Line 5, the 
percentage of national foster care placements for LGBTQI+ children 
needing designated placements, is 15.0 percent ((103,423 x 30 percent) 
/ 206,812). This estimate is purposefully high to account for some 
children under age 14 who may also need such designated placements.
---------------------------------------------------------------------------

    \45\ Baams, L., Russell, S.T, and Wilson, B.D.M. LGBTQ Youth in 
Unstable Housing and Foster Care, American Academy of Pediatrics, 
Volume 143, Issue 3, March 2019, https://doi.org/10.1542/peds.2017-4211.
    \46\ Institute for Innovation and Implementation at University 
of Maryland's School of Social Work and the National Quality 
Improvement Center on Tailored Services, Placement Stability, and 
Permanency for LBTQ2S Children and Youth in Foster Care (2021). 
Cuyahoga Youth Count: A Report on LBTQ+ Youth Experience in Foster 
Care, https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf.
---------------------------------------------------------------------------

    Line 6. Total incremental costs (Federal and non-Federal) for 
recruiting Designated Placements. Line 6 of the table below displays 
the estimated total cost of recruiting placement providers to meet the 
proposed requirements for

[[Page 34857]]

Designated Placement providers for LGBTQI+ children in the foster care 
system. This estimate for each FY is based on data collected from ten 
title IV-E/IV-B agencies across the Nation with respect to their 
current annual budgets for foster care recruitment activities. We used 
this data to calculate a nationwide total estimated annual foster care 
recruitment cost of $185,998,176 based on an extrapolation of the 
provided data using FY 2022 foster care caseload information. This 
figure was adjusted for expected inflation (+2.0 percent per FY) thru 
FY 2027 resulting in an amount of $204,597,993 and was then multiplied 
by the calculated portion of the FC caseload ages 14 and older, and 
then further reduced to 30 percent of that number (estimated LGBTQI+ 
identification percentage) to reflect the maximum anticipated need for 
new Designated Placements in each FY. The resulting amount was then 
reduced by another 50 percent to reflect the likelihood that a 
significant portion of the Designated Placement recruitment budget 
would be obtained by refocusing the existing budget for recruitment 
costs towards Designated Placements. This would promote the agency's 
ability to comply with the proposed requirement in paragraph (a)(1), 
given agency recruitment budgets may be limited.
    For example, in FY 2027 we estimate that up to 30 percent of 
notified children (Line 4) as a percentage of all newly placed children 
in that FY may require the availability of a placement that is 
designated by the agencies as a Designated Placement. This percentage 
for FY 2027 of 15.0 percent (31,027 / 206,812) is then multiplied by 
the national estimated foster care recruitment cost budget 
$204,597,993) resulting in a total of $30,694,652. This figure is then 
reduced by 50 percent to reflect the anticipated incremental cost for 
Designated Placement provider recruitment efforts of $15,347,326. This 
estimate is purposefully high to account for some children under age 14 
who may also need Designated Placements. The total cost for FYs 2025, 
2026, and 2027 is $28,002,901.
    Line 7. Total costs (Federal and non-Federal) for Designated 
Placement training (caseworkers, supervisors & providers). Line 7 of 
the table below provides the estimated total cost of training required 
for Designated Placements. This estimate for each FY is derived by 
first identifying the baseline cost of providing a model sexual 
orientation, gender identity or expression training curriculum 
developed by the National Quality Improvement Center on Tailored 
Services, Placement Stability, and Permanency for LGBTQ2S Children and 
Youth in Foster Care (QIC-LGBTQ2S); a project funded by ACF. This 
curriculum provides for a two-hour training that can be conducted in-
person or remotely for an average group of 30 participants. The 
identified average cost of delivering this training is $300 plus 
overhead of 100 percent bringing the total cost to $600 or $20 per 
participant. Our estimate increases this figure by three percent per 
year to account for inflation.
    We estimate the number of caseworker and casework supervisor 
(staff) in FY 2027 to be 100 percent of individuals in these positions. 
National foster care caseworker staffing level data was obtained from 
reports provided by six state title IV-E/IV-B agencies representing 
about 16 percent of the national FY 2021 foster care population. This 
data was then extrapolated using FC caseloads to obtain an estimate of 
the total number of national FC caseworkers in FY 2021. An estimated 
annual caseworker growth rate of +2.2 percent was also computed using 
national NCANDS child protection caseworker data collected between FY 
2003 and FY 2014. This data results in an estimated FY 2027 national 
total of 39,929 FC caseworkers. The casework supervisor count uses the 
generally applied ratio of one supervisor for five workers resulting in 
an FY 2027 number of 7,986. The provider trainee population is 
calculated by using the count of children to be notified of Designated 
Placement provisions (Line 4) multiplied by 30 percent (maximum 
expected portion of these children identifying as LGBTQI+) and is then 
further reduced by the expectation that each provider will, on average, 
serve 1.5 children. This results in an FY 2027 Designated Placement 
provider trainee population of 23,270. The expected number of trainees 
for subsequent FYs is lower based on the expected number of newly 
placed children in each of these FYs.
    Other costs included in the training estimate are staff 
participation costs and travel and per diem for in-person trainings 
conducted outside of the local area. Staff participation costs include 
salary and overhead for each worker spent in the training (two hours). 
Caseworker title average salary data (as of May 2022) sourced from the 
U.S. Department of Labor; Bureau of Labor Statistics (BLS) was used in 
the calculation along with an estimated overhead cost rate of 100 
percent. This results in an FY 2022 (baseline) hourly cost (salary + 
overhead) of $55.98. The cost for two hours of activity is thus $111.97 
per participant. A cost-of-living adjustment of +2 percent per year is 
than added for each subsequent year. Travel and per diem costs are 
estimated in FY 2022 (base year) as $100 per participant at in-person 
trainings which are expected to constitute 50 percent of total 
trainings. An inflation factor of three percent per year is applied to 
these costs for later FYs. For example, in FY 2027 we expect a total of 
71,185 trainees (caseworkers, supervisors & foster care providers). 
Therefore, the 50 percent of that total expected to have travel & per 
diem costs is 35,592 trainees. At an average cost of $115 per 
participant the total cost in this category is $4,093,114. The total FY 
2027 estimate for Designated Placement training is $11,064,847. This 
amount lowers to $3,406,624 for FY 2029. The total training cost for 
FYs 2027, 2028, and 2029 is $17,740,168.
    Line 8. Total costs (Federal and non-Federal) for all Designated 
Placement activities. Line 8 displays the annual estimated total 
(Federal + non-Federal) costs for all recruitment and training 
activities for LGBTQI+ children. This is the sum of lines 6 and 7. We 
estimate these total costs in FY 2027 as $26,412,173 and the total cost 
for FYs 2027, 2028, and 2029 is $45,743,070.
    Line 9. Total title IV-E FFP for all Designated Placement activity 
costs. Line 9 displays the annual estimated total title IV-E Federal 
share of costs for all placement activities for LGBTQI+ children. This 
is calculated by applying the applicable match rate and the estimated 
title IV-E participation (eligibility) rate that is generally used to 
allocate foster care administrative costs. Title IV-E agencies may 
claim FFP for 50 percent of the administrative costs that agencies 
incur to provide for activities performed on behalf of title IV-E 
eligible children in foster care, recruitment of foster homes and 
child-care institutions (CCIs), and certain other administrative 
activities identified in 45 CFR 1356.60. The agency must pay the 
remaining 50 percent non-Federal share of title IV-E administrative 
costs with state or tribal funds.
    Title IV-E agencies may claim reimbursement for 75 percent of 
allowable training costs to provide for activities performed on behalf 
of title IV-E eligible children in foster care including training of 
agency caseworkers and supervisors (including staff participation 
costs) and training of foster care providers providing care to title 
IV-E eligible children. The title IV-E agency must pay the remaining 25 
percent non-Federal share of title IV-E training costs with state or 
tribal funds. For example, the FY 2027 amount is

[[Page 34858]]

calculated by using the FY 2027 estimated title IV-E foster care 
participation rate of 39.65 percent along with the applicable FFP rates 
of 50 percent for administrative costs and 75 percent for training 
costs. We estimate these total title IV-E FFP costs beginning in FY 
2027 as $6,333,200 and the total cost for FYs 2027, 2028, and 2029 is 
$10,827,381.
    Line 10. Total title IV-E non-Federal share for all Designated 
Placement activity costs. Line 10 displays the annual estimated total 
title IV-E non-Federal (state or tribe) share of costs for all 
Designated Placement activities for LGBTQI+ children. This is 
calculated by applying the applicable non-Federal share match rate and 
the estimated non-IV-E participation (eligibility) rate that is 
generally used to allocate foster care administrative costs. For 
example, the FY 2027 amount is calculated by using the FY 2027 
estimated title IV-E foster care participation rate of 39.65 percent 
along with the applicable non-Federal share matching rates of 50 
percent for administrative costs and 25 percent for training costs. We 
estimate these total title IV-E non-Federal share costs beginning in FY 
2027 as $4,139,530 and the total cost for FYs 2027, 2028, and 2029 is 
$7,310,288.
    Line 11. Total title IV-B non-Federal share for all Designated 
Placement activity costs. Line 11 displays the annual estimated total 
title IV-B non-Federal (state or tribe) share of costs for all 
Designated Placement activities. This is calculated by deducting such 
placement activity costs that are allocable to title IV-E from such 
total costs. Although costs allocated to title IV-B are subject to 
Federal matching at the 75 percent rate, as explained previously we 
assume that none of these costs will be federally reimbursed through 
title IV-B due to the limited annual allotments for the title IV-B 
program. Therefore, agencies may need to fund the cost entirely from 
state or tribal funds or other sources of funding. We estimate these 
total title IV-B non-Federal share costs beginning in FY 2027 as 
$15,939,443 and the total cost for FYs 2027, 2028, and 2029 is 
$27,605,401.
    Line 12. Total title IV-E and IV-B non-Federal share for all 
Designated Placement activity costs. Line 12 displays the annual 
estimated total title IV-E and IV-B non-Federal share of costs for all 
Designated Placement activities. This is the sum of amounts on Lines 10 
and 11. We estimate these total title IV-E and IV-B non-Federal share 
costs beginning in FY 2027 as $20,078,973 and the total cost for FYs 
2027, 2028, and 2029 is $34,915,689.

----------------------------------------------------------------------------------------------------------------
                                       2022                                                         Three-year
              Year                  (baseline)         2027            2028            2029            total
----------------------------------------------------------------------------------------------------------------
1. National number of children           391,098         415,095         418,895         422,730  ..............
 in foster care (FC)............
2. National number of children            92,852         103,423         104,418         105,423  ..............
 in FC age 14 and older.........
3. National average monthly               36,817          41,008          41,403          41,801  ..............
 number of children in title IV-
 E FC age 14 and older..........
4. National number of children               N/A         103,423          42,438          42,846  ..............
 to be notified of Designated
 Placement provisions...........
5. Percentage of national FC                 N/A           15.0%            6.2%            6.2%  ..............
 placements for children needing
 Designated Placements..........
6. Total incremental costs                   N/A     $15,347,326      $6,297,488      $6,358,087      28,002,901
 (Federal and non-Federal) for
 Designated Placement
 recruitment....................
7. Total costs (Federal and non-             N/A     $11,064,847      $3,268,697      $3,406,624      17,740,168
 Federal) for Designated
 Placement training
 (caseworkers, supervisors &
 providers).....................
8. Total Federal and non-Federal             N/A     $26,412,173      $9,566,185      $9,764,712      45,743,070
 costs for all Designated
 Placement activities (Lines
 6+7)...........................
9. Total title IV-E FFP for all              N/A      $6,333,200      $2,220,573      $2,273,609      10,827,381
 Designated Placement Activity
 costs..........................
10. Total title IV-E non-Federal             N/A      $4,139,530      $1,572,534      $1,598,224       7,310,288
 share for Designated Placement
 activity costs.................
11. Total title IV-B non-Federal             N/A     $15,939,443      $5,773,079      $5,892,879      27,605,401
 share for Designated Placement
 activity costs.................
12. Total titles IV-E and IV-B               N/A     $20,078,973      $7,345,613      $7,491,103      34,915,689
 non-Federal share for placement
 Designated activity costs
 (Lines 10+11)..................
----------------------------------------------------------------------------------------------------------------

    ACF received several comments on the cost estimate.
    Comment: One commenter expressed concerns that the fiscal impact 
calculations of this regulation are based on estimates of the number of 
LGBTQI+ children related to surveys conducted (one completed in 
California in 2014 and one completed in Ohio in 2021) rather than 
AFCARs data.
    Response: AFCARS does not collect information on LGBTQI+ status or 
identity. Therefore, ACF believes that these surveys are the best 
available data to estimate the potential population to be served 
through this regulatory change.
    Comment: Commenters expressed that the proposed rule underestimated 
the recruitment costs, and the cost estimate is unrealistic.
    Response: As noted in the NPRM, the ACF estimate covers the maximum 
potential population for which foster home recruitment will be needed. 
It is also expected that as policies and procedures are modified to 
incorporate Designated Placements into existing recruitment activities, 
the incremental costs will decrease. We thus believe the estimate cost 
for recruitment to be reasonable.
    Comment: One commenter stated that the basis for the cost estimate 
is not clear.
    Response: ACF is basing its estimate that incremental costs of 
recruitment will no longer be in effect after FY 2027 on an expectation 
that recruiting activities for Designated Placements will be 
incorporated into existing recruitment contracts and services as well 
as the development of a significant pool of existing foster family 
homes that are trained to serve as Designated Placements.
    Comment: One commenter indicated that their experience with 
'estimates' of the cost of new proposals is alarmingly low. They always 
cost more than originally estimated.
    Response: ACF understands the concern raised and has made a careful 
assessment of the likely costs based on information currently 
available.
    Comment: One commenter stated the NPRM failed to adequately 
consider the costs state agencies will incur to comply with mandates. 
For example, state agencies will need to develop protocols and systems 
for implementing the rule's new oral and written notification regimes. 
State agencies also face significant costs to enforce and monitor the 
retaliation regime, including the costs of preparing and providing 
materials to all foster care providers.
    Response: ACF determined that incremental costs for the Designated 
Placement regulatory changes were most likely to be concentrated in 
recruitment and training costs. We recognize that some other 
incremental costs may

[[Page 34859]]

occur, but do not expect them to be significant.

VII. 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. Consultation 
and Coordination With Indian Tribal Governments, 65 FR 67249. 
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.
    Some title IV-E/IV-B tribal agencies may need to amend their 
practices to ensure that a placement is available for and provided to 
an LGBTQI+ or Two-Spirit child in foster care that supports the child's 
identity. However, we do not expect the costs to be substantial and 
have received no comments indicating so. Tribal title IV-E agencies may 
claim FFP for title IV-E foster care administrative and training costs 
for a portion of the administrative costs incurred.
    ACF is committed to consulting with Indian tribes and tribal 
leadership to the extent practicable and permitted by law. ACF engaged 
in consultation with Indian tribes and their leadership on the 
September 2023 NPRM as described below.

Description of Consultation

    On September 29, 2023, ACF issued a letter to tribal leaders 
announcing the date, purpose, virtual location, and registration 
information for tribal consultation and shared it widely through a 
variety of peer groups and email list-serves. Tribal Consultation was 
held via a Zoom teleconference call on October 30, 2023. A report of 
the tribal consultation may be found on the CB website at: https://www.acf.hhs.gov/cb/report/tribal-consultation-nprms-legal-foster-care. 
In summary, the consultation participants expressed the importance of 
recognizing LGBTQI+ resources that are specific to each tribe because 
of differing traditions. A participant made the point that that there 
could be a potential conflict between placing a child in accordance 
with the ICWA placement preferences and the NPRM provisions on safe and 
appropriate placements. We agree that there could be numerous factors 
in Federal law and the final rule that impact an agency's decision on a 
case-by-case basis, which they will need to take into account in 
Federal law and the final rule. Participants requested clarification on 
what the law requires when there is a conflict between what a child is 
expressing and what the parents want for the child. This issue is 
addressed earlier in the preamble. Several participants commented that 
ACF can support tribal agencies by providing flexible funding to 
develop resources for LGBTQI+ youth. While flexible funding is not 
available at this time to implement the final rule, as noted in the 
NPRM, title IV-E administrative costs are available to claim 
recruitment and training costs.

List of Subjects in 45 CFR Part 1355

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

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

    Approved: April 23, 2024.
Xavier Becerra,
Secretary, Department of Health and Human Services.

    For the reasons set forth in the preamble, ACF amends 45 CFR part 
1355 as follows:

PART 1355--GENERAL

0
1. The authority citation for part 1355 continues to read as follows:

    Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq.; 42 
U.S.C. 1302.


0
2. Add Sec.  1355.22 to read as follows:


Sec.  1355.22  Designated Placement requirements under titles IV-E and 
IV-B for LGBTQI+ children.

    LGBTQI+ children (including children with lesbian, gay, bisexual, 
transgender, queer, or questioning, and intersex status or identity) 
shall be placed and receive services in accordance with the following 
requirements:
    (a) Protections generally applicable. As part of meeting the 
requirement to provide a safe and appropriate placement for all 
children in foster care, the title IV-E/IV-B agency must ensure that 
all placements, including those for LGBTQI+ children, are free from 
harassment, mistreatment, or abuse.
    (b) Designated Placements and services for LGBTQI+ children. The 
title IV-E/IV-B agency must meet the following requirements for each 
LGBTQI+ child in foster care:
    (1) Designated Placements. The title IV-E/IV-B agency must ensure 
there is a Designated Placement available for all LGBTQI+ children in 
foster care who request or would benefit from such a placement. Nothing 
in this section requires any provider to become or serve as a 
Designated Placement. As used in this section, for a placement to be 
specifically designated for an LGBTQI+ child, the provider must meet 
the protections generally applicable as defined at paragraph (a) of 
this section and:
    (i) Commit to establish an environment that supports the child's 
LGBTQI+ status or identity;
    (ii) Be trained with the appropriate knowledge and skills to 
provide for the needs of the child related to the child's self-
identified sexual orientation, gender identity, and gender expression. 
The training must reflect evidence, studies, and research about the 
impacts of rejection, discrimination, and stigma on the safety and 
wellbeing of LGBTQI+ children, and provide information for providers 
about professional standards and recommended practices that promote the 
safety and wellbeing of LGBTQI+ children; and
    (iii) Facilitate the child's access to age- or developmentally 
appropriate resources, services, and activities that support their 
health and well-being as described in paragraph (e) of this section.
    (2) Process for notification of and request for Designated 
Placements. The IV-E/IV-B agency must implement a process by which an 
LGBTQI+ child may request a Designated Placement as described in 
paragraph (b)(1) of this section or request that their current 
placement be offered services to become a Designated Placement. The 
title IV-E/IV-B agency's process for considering such a request must 
provide the child with an opportunity to express their needs and 
concerns. The process must safeguard the privacy and confidentiality of 
the child, consistent with section 471(a)(8) of the Act and 45 CFR 
205.50, and must include the following components:
    (i) Notice of the availability of Designated Placements and the 
ability to request that services be offered to their

[[Page 34860]]

current placement must be provided to, at minimum:
    (A) All children age 14 and over; and
    (B) Children under age 14 who:
    (1) Have been removed from their home due, in whole or part, to 
familial conflict about their sexual orientation, gender identity, 
gender expression or sex characteristics; or
    (2) Have disclosed their LGBTQI+ status or identity or whose 
LGBTQI+ status or identity is otherwise known to the agency;
    (ii) The notice must be provided in an age- or developmentally 
appropriate manner, both verbally and in writing, and must inform the 
child of how they may request a Designated Placement or services for 
their current placement and the process the title IV-E/IV-B agency will 
use in responding to their request; and
    (iii) The notice must inform the child of the nonretaliation 
protections described at paragraph (d) of this section and describe the 
process by which a child may report a concern about retaliation.
    (3) Placement and services decisions and changes. When making 
placement and service decisions related to an LGBTQI+ child, the title 
IV-E/IV-B agency shall give substantial weight to the child's expressed 
concerns or requests when determining the child's best interests. To 
promote placement stability, when an LGBTQI+ child requests a 
Designated Placement and before initiating any placement changes, the 
title IV-E/IV-B agency must consider whether additional services and 
training would allow the current provider to meet the conditions for a 
Designated Placement. If so, and if the current provider is willing to 
meet the conditions for a Designated Placement, the IV-E/IV-B agency 
must use the case review system to regularly review the provider's 
progress towards meeting the conditions of such a designation.
    (c) Process for reporting concerns about placements and concerns 
about retaliation. The title IV-E/IV-B agency must implement a process 
for LGBTQI+ children to report concerns about a placement that fails to 
meet the applicable requirements of this section, and to report 
concerns about retaliation as described in paragraph (d) of this 
section. The process must safeguard the privacy and confidentiality of 
the child, consistent with section 471(a)(8) of the Act and 45 CFR 
205.50. The title IV-E/IV-B agency must respond promptly to an LGBTQI+ 
child's reported concern, consistent with the agency's timeframes for 
investigating child abuse and neglect reports depending on the nature 
of the child's report.
    (d) Retaliation prohibited. (1) The title IV-E/IV-B agency must 
have a procedure to ensure that neither the title IV-E/IV-B agency, nor 
any provider, nor any entity or person acting on behalf of the agency 
or a provider retaliates against an LGBTQI+ child in foster care based 
on the child's actual or perceived LGBTQI+ status or identity, any 
disclosure of that status or identity by the child or a third party, or 
the child's request or report related to the requirements for 
placements or services under this part.
    (2) Conduct by the title IV-E/IV-B agency, provider, or any entity 
or person acting on behalf of the agency or a provider that will be 
considered retaliation includes, but is not limited to:
    (i) Harassment, mistreatment, or abuse as described in paragraph 
(a) of this section.
    (ii) Attempts to undermine, suppress, change, or stigmatize a 
child's sexual orientation or gender identity or expression through 
``conversion therapy.''
    (iii) Unwarranted placement changes, including unwarranted 
placements in congregate care facilities, or restricting an LGBTQI+ 
child's access to LGBTQI+ peers, siblings, family members, or age- or 
developmentally appropriate materials and community resources.
    (iv) Disclosing the child's LGBTQI+ status or identity in ways that 
cause harm or risk the privacy of the child or that infringe on any 
privacy rights of the child.
    (v) Using information about the child's LGBTQI+ status or identity 
to initiate or sustain a child protection investigation or disclosing 
information about the child's LGBTQI+ status or identity to law 
enforcement in any manner not permitted by law.
    (vi) Taking action against current or potential caregivers 
(including foster parents, pre-adoptive parents, adoptive parents, kin 
caregivers and birth families) because they support or have supported a 
child's LGBTQI+ status or identity.
    (e) Access to supportive and age- or developmentally appropriate 
services. The title IV-E/IV-B agency must ensure that LGBTQI+ children 
have access to age- or developmentally appropriate services that are 
supportive of their sexual orientation and gender identity or 
expression, including clinically appropriate mental and behavioral 
health supports.
    (f) Placement of transgender and gender non-conforming children in 
foster care. When considering placing a child, the title IV-E/IV-B 
agency must offer the child a placement consistent with their gender 
identity. The title IV-E/IV-B agency must also consult with the child 
to provide an opportunity to voice any concerns related to placement.
    (g) Compliance with privacy laws. The title IV-E/IV-B agency must 
comply with all applicable privacy laws, including section 471(a)(8) of 
the Act and 45 CFR 205.50, in all aspects of its implementation of this 
section. Information that reveals a child's LGBTQI+ status or identity 
may only be disclosed in accordance with law and any such disclosure 
must be the minimum necessary to accomplish the legally-permitted 
purposes.
    (h) Training and notification requirements. In addition to meeting 
the requirements of paragraph (b)(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 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 (d) of this section.
    (3) Ensure that all placement providers are informed of the 
procedural requirements to comply with this section, including the 
required non-retaliation provision outlined in paragraph (d) of this 
section.
    (i) Protections for religious freedom, conscience, and free speech. 
Insofar as the application of any requirement under this section would 
violate applicable Federal protections for religious freedom, 
conscience, and free speech, such application shall not be required.
    (j) No penalties for providers that do not seek to qualify as 
Designated Placements. Nothing in this section shall be construed to 
require or authorize a State or Tribe to penalize a provider in the 
titles IV-E or IV-B programs because the provider does not seek or is 
determined not to qualify as a Designated Placement under this section.
    (k) Severability. Any provision of this section held to be invalid 
or

[[Page 34861]]

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.
    (l) Implementation. Title IV-E/IV-B agencies must follow the 
requirements of this section beginning on October 1, 2026.
    (m) No effect on more protective laws or policies. Nothing in this 
section shall limit any State, Tribe, or local government from imposing 
or enforcing, as a matter of law or policy, requirements that provide 
greater protection to LGBTQI+ children than this section provides.

0
3. Amend Sec.  1355.34 by revising paragraph (c)(2)(i) to read as 
follows:


Sec.  1355.34  Criteria for determining substantial conformity.

* * * * *
    (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 the child's needs, 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; for 
documentation of the steps taken to make and finalize an adoptive or 
other permanent placement when the child cannot return home; and for 
implementation of the requirements of Sec.  1355.22(b) and (d) as 
applicable (sections 422(b)(8)(A)(ii), 471(a)(16), and 475(5)(A) of the 
Act and Sec.  1355.22(b) and (d));
* * * * *
[FR Doc. 2024-08982 Filed 4-29-24; 8:45 am]
BILLING CODE P

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