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This rule will amend the Adoption and Foster Care Analysis and Reporting Systems (AFCARS). It will modify requirements for title IV-E foster care agencies to collect and report data on children in out-of-home care and children under title IV-E adoption or guardianship agreements with the title IV-E agency.

Statement of Need:

This rule will amend the Adoption and Foster Care Analysis and Reporting Systems (AFCARS). It will modify requirements for title IV-E foster care agencies to collect and report data on children in out-of-home care and children under title IV-E adoption or guardianship agreements with the title IV-E agency.

Summary of the Legal Basis:

Section 479 of the Social Security Act (the Act) mandates HHS regulate a data collection system for national adoption and foster care data.  Section 474(f) of the Act requires HHS to impose penalties for non-compliant AFCARS data.  Section 1102 of the Act instructs the Secretary to promulgate regulations necessary for the effective administration of the functions for which HHS is responsible under the Act. 

Alternatives:

1. ACF considered whether other existing data sets could yield similar information.  ACF determined that AFCARS is the only comprehensive case-level data set on the incidence and experiences of children who are in out-of-home care under the placement and care of the title IV-E agency or who are adopted under a title IV-E adoption assistance agreement.

2. We also received state comments to the 2016 SNPRM citing they have few Indian children in foster care, if any.  ACF considered alternatives to collecting ICWA-related data through AFCARS, such as providing an exemption from reporting but alternative approaches are not feasible due to: 

• AFCARS data must be comprehensive per section 479(c)(3) of the Act and exempting some states from reporting the ICWA-related data elements is not consistent with this statutory mandate, and would render it difficult to use this data for development of national policies.
• Section 474(f) of the Act provides for mandatory penalties on the title IVE agency for non-compliance on AFCARS data that is based on the total amount expended by the title IV-E agency for administration of foster care activities.  Therefore, we are not authorized to permit some states to be subject to a penalty and not others.  In addition, allowing states an alternate submission process would complicate and/or prevent the assessment of penalties per 1355.47, including penalties for failure to submit data files free of cross-file errors, missing, invalid, or internally inconsistent data, or tardy transactions for each data element of applicable records.

Anticipated Costs and Benefits:

We estimate that costs for the final rule will be approximately $36 million.  Benefits are that we will have an updated AFCARS regulation for the first time since 1993 and we will have national data on Indian children as defined in ICWA.

Risks:

If we do not implement this final rule, agencies will continue to report information to AFCARS that is not up to date with revisions to the statute over the years.  Further, without regulations, we are unable to implement the statutory penalty provisions.  In addition, we will not collect comprehensive national data on the status of American Indian/ Alaska Native children to whom the Indian Child Welfare Act (ICWA) applies and historical data on children in foster care.  We can expect criticisms from federally recognized Indian tribes and other stakeholders that the absence of ICWA data prevents understanding both how ICWA is implemented and how to address and reduce the disproportionate number of American Indian / Alaska Native children in foster care nationally.