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This rule will propose to clarify that title IV-E/IV-B agencies are required to offer safe and appropriate foster care placements, including processes to ensure children can request such placements and agencies must respond to concerns about those placements, for children in foster care who identify as lesbian, gay, bisexual, transgender, queer or questioning, intersex (LGBTQI+).  The rule will not interfere with faith-based child welfare providers continue to partner with title IV-E/IV-B agencies in a way that does not interfere with those providers’ sincerely held religious beliefs.

Statement of Need:

To support States and tribes in complying with Federal laws that require that all children in foster care receive safe and proper care, the proposed rule would clarify the processes and requirements to State child welfare agencies must follow to ensure children in foster care who identity as LGBTQI+ are provided with placements the agency designates as safe and appropriate for an LGBTQI+ child, and with services that are necessary to support their health and wellbeing.  These requirements clarify how title IV-E/IV-B agencies must meet IV-E and IV-B statutory requirements, including for the case review system and case plan, to appropriately serve children in foster care who identify as LGBTQI+.  While the general requirements for the case review system are not new, ACF is proposing to prescribe how agencies must implement the requirements to provide placements and services to children in foster care who identity as LGBTQI+.

Summary of the Legal Basis:

Sections 471(a)(16), 422(b), and 475(1)(B) of the Social Security Act.

Alternatives:

As an alternative to this NPRM, ACF  has already provided sub-regulatory guidance requiring agencies to implement the provisions of the NPRM for children who identify as LGBTQI+.  However, this guidance did not have the force of law and thus was not sufficient to effectively ensure that LGBTQI+ children and youth in foster care receive appropriate placements and services.

Anticipated Costs and Benefits:

The benefits of this NPRM are that placing children in foster care with providers the agencies designate as safe and appropriate 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 homelessness, housing instability and food insecurity. ACF acknowledges that there will be a cost to implement changes made by this proposed rule as we anticipate that a majority of states would need to expand their efforts to recruit and identify providers and foster families that the state or tribe could designate as safe and appropriate placements for a LGBTQI+ child. This cost would vary depending on an agency’s available resources to implement a final rule, though Federal financial participation is available to agencies for eligible administrative expenses, including expenses for recruiting and identifying providers and foster families that could be designated as safe and appropriate placements for an LGBTQI+ child.

Risks:

TBD