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To ensure equitable treatment of all children and youth in child welfare, including Native American and LGBTQ+ children and youth, this rule will propose to require title IV-E agencies to collect and report for AFCARS additional information related to youth, foster parents, adoptive parents, and legal guardians. AFCARS data is used for planning, technical assistance, discretionary service grants, and research and evaluation, all with the goal of reducing entry into and improving outcomes of children in foster care.

Statement of Need:

This NPRM is consistent with the Administration’s priority of advancing equity for those historically underserved and adversely affected by persistent poverty and inequality.  Native and LGBTQI+ children are over-represented populations in the child welfare system; however, the experiences of LGBTQI+ children in foster care and Native children are not fully captured in current child welfare data systems. As such, adding sexual orientation and ICWA data elements removed from the 2020 rule would make the experiences of these children more visible and may provide better insight into the trajectory of LGBTQI+ and Native children in foster care. It will also provide avenues for collaboration between states and tribes, in areas such as technical assistance, training and resource allocation that would be informed by the additional ICWA data elements. We anticipate that this is a critical step in addressing the needs of this population, and also will assist title IV-E agencies in recruiting and training foster care providers in meeting the needs of these youth. We will also consider potentially adding other elements that were removed by a May 2020 AFCARS Final Rule, such as health and education data.

Summary of the Legal Basis:

AFCARS is authorized by section 479 of the Social Security Act (the Act), which mandates that the Department of Health and Human Services (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 authorizes the Secretary to publish regulations, not inconsistent with the Act, as may be necessary for the efficient administration of the functions with which the Secretary is responsible under the Act.

Alternatives:

If this NPRM is not published, title IV-E agencies are required to report to AFCARS (beginning 10/1/22 under the 2020 final rule) related to ICWA: the child’s tribal membership and name of Tribe; tribal membership for the child’s the parents, foster parents, adoptive parents, and legal guardians; whether the state made inquiries if the child is an Indian child as defined in ICWA; whether ICWA applies for the child and if yes, the date that the state was notified by the Indian tribe or state or tribal court that ICWA applies; and whether the child's tribe(s) was sent legal notice. Title IV-E agencies are not required to report on sexual orientation in AFCARS currently.

Anticipated Costs and Benefits:

There will be new state/tribe and federal costs associated with requiring title IV-E agencies to report additional AFCARS data elements, and the cost is contingent on the scope of the NPRM.

Risks:

None