[Federal Register Volume 88, Number 30 (Tuesday, February 14, 2023)]
[Proposed Rules]
[Pages 9411-9420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03005]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1355 and 1356

RIN 0970-AC91


Separate Licensing Standards for Relative or Kinship Foster 
Family Homes

AGENCY: Children's Bureau (CB); Administration on Children, Youth and 
Families (ACYF); Administration for Children and Families (ACF); 
Department of Health and Human Services (HHS).

ACTION: Notice of proposed rulemaking.

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SUMMARY: ACF is proposing to revise the definition of ``foster family 
home'' to allow each title IV-E agency to adopt foster family home 
licensing or approval standards for foster family homes of individuals 
related to a child by blood, marriage, or adoption and other 
individuals who have an emotionally significant relationship with the 
child, including fictive kin, (referred herein as ``relative(s) and 
kin(ship)'') that differ from non-relative foster family homes agency 
standards. In this context, a ``non-relative'' foster family home means 
a home of an unrelated individual who is not kin or fictive kin. This 
notice of proposed rulemaking (NPRM) would allow 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. In addition, the NPRM would amend the 
requirement that title IV-E agencies review the amount of FCMPs to also 
assure that the agency provides a licensed or approved relative and 
kinship foster family home the same amount of FCMP that would have been 
made if the child was placed in a non-related foster family home.

DATES: In order to be considered, ACF must receive written comments on 
this NPRM on or before April 17, 2023.

ADDRESSES: ACF encourages the public to submit comments electronically 
to ensure they are received in a timely manner. Please be sure to 
include identifying information on any correspondence. To download an 
electronic version of the proposed rule, please go to http://www.regulations.gov/. You may submit comments, identified by docket 
number, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include [docket number and/
or Regulatory Information Number (RIN) number] in subject line of the 
message.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking. All comments received 
will be posted without change to www.regulations.gov, including any 
personal information provided.

FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, Director, Policy 
Division, Children's Bureau, (202) 401-5789 [email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Statutory Authority To Issue NPRM
II. Background
III. Section-by-Section Discussion of Proposed Regulatory Changes
IV. Regulatory Process Matters
V. Tribal Consultation Statement

I. Statutory Authority

    This NPRM is published under the authority granted to the Secretary 
of Health and Human Services (the Secretary) by section 1102 of the 
Social Security Act (the Act), 42 U.S.C. 1302. Section 1102 of the Act 
authorizes the Secretary to publish regulations, not inconsistent with 
the Act, as may be necessary for the efficient administration of the 
functions with which the Secretary is responsible under the Act.

II. Background

    When parents are unable to safely care for their own children, it 
is often grandparents, other relatives, or kin who step forward to 
provide a loving home for those children, either temporarily or 
permanently. All over the nation, there is a preference to prioritize 
placing children entering foster care with relatives and kin over non-
relative foster families when appropriate (``How can we prioritize kin 
in the home study and licensure process, and make placement with 
relatives the norm?'' Casey Family Programs, 2020.). This preference 
stems from the knowledge that it is generally best for children to be 
with family and also from the increasing shortage of qualified foster 
parents (Miller, Jennifer, ``Creating a Kin-First Culture,'' American 
Bar Association, July 1, 2017). The Government Accountability Office 
found ``in 2018, an estimated 2.7

[[Page 9412]]

million children lived with kin caregivers--grandparents, other 
relatives, or close family friends--because their parents were unable 
to care for them.'' (U.S. Government Accountability Office, Child 
Welfare and Aging Programs: HHS Could Enhance Support for Grandparents 
and Other Relative Caregivers (GAO-20-434), July 2020).
    Title IV-E agencies have discretion to define ``relative'' and 
``kin'' with regard to licensing standards. The definitions among title 
IV-E agencies vary, and sometimes ``kin'' is used more broadly than 
``relative''. Fictive kin often include people who are not related by 
blood, marriage or adoption, but who have an emotionally significant 
relationship with the child, and those who are treated ``like family.'' 
(American Bar Association, Legally Recognized Fictive Kin 
Relationships: A Call for Action, March 1, 2022). For purpose of this 
NPRM, we use the term ``relative(s) and kin(ship)'' to allow title IV-E 
agencies to adopt one set of licensing or approval standards for 
individuals related to a child by blood, marriage or adoption and other 
individuals who have an emotionally significant relationship with the 
child, including fictive kin, that is different from the licensing or 
approval standards used for non-relative foster family homes. A child 
is in foster care when a title IV-E agency has placement and care 
responsibility for a child, removes the child from the parent's home, 
and places the child in 24-hour substitute care (45 CFR 1355.20). A 
child is in foster care in accordance with this definition regardless 
of whether the placement is licensed or approved and payments are made 
by the state or tribe for the care of the child (45 CFR 1355.20). 
Placement and care responsibility means that a title IV-E agency is 
legally accountable for the day-to-day care and protection of the 
child, decides with whom the child in foster care will be placed, and 
provides the child with federally mandated protections such as case 
plans and court reviews (sections 471(a)(16) and 475(5) of the Act; 
CWPM 8.3A.12 #4). We also use the terms ``licensing'' and ``approval'' 
interchangeably, depending on the state terminology (65 FR 4020 at 
4032; CWPM 8.3A.8c #5). Each state and tribe operating a title IV-E 
program must designate an authority responsible for establishing and 
maintaining licensing or approval standards for foster family homes.
    Encouraging and assisting relative and kin caregivers to become a 
licensed or approved foster care placement is important, in part, 
because it allows families to receive financial support through FCMPs 
(sections 472(b)(1) and (c)(1) of the Act and section I of ACYF-CB-PI-
10-11). Licensing or approval is also one component of eligibility for 
the title IV-E Kinship Guardianship Assistance Program, which can 
provide longer-term financial support and benefits to a guardian that 
provides permanency to a child who cannot safely return home (section 
473(d)(3)(A)(i)(II) of the Act). The section-by-section discusses other 
reasons why licensing or approving relative and kinship foster family 
homes is important for children in foster care.
    Although the Act includes provisions requiring each agency to give 
priority consideration to relatives as foster care placements over a 
non-related caregiver when determining an out-of-home placement for a 
child, we understand that title IV-E agencies take varied approaches to 
licensing and approving relative and kin foster family homes. Research 
identifies that many agencies have policies that prioritize placements 
with appropriate relatives and kin and provide them with an option to 
become a licensed or approved foster parent so that they may receive 
FCMPs (Beltran, Ana, and Redlich Epstein, Heidi. Improving Foster Care 
Licensing Standards around the United States: Using Research Findings 
to Effect Change. Washington, DC: Generations United and American Bar 
Association, February 2013). Conversely, research also shows that some 
agencies may not routinely pursue licensing and approving relatives or 
kin as a possible licensed foster care placement for a child. For 
example, relatives and kin who provide care for a child in foster care 
may be denied a foster family home license or approval because they 
have not met strict licensing standards, including non-safety standards 
that the state may waive under current federal law. Thus, the relative 
or kin caregiver is not eligible for FCMPs.
    State licensing and approval standards for foster family homes were 
developed before research demonstrated that relative and kinship care 
is often the best option for children in foster care. As a result, 
standards were created to ensure safety for children living with 
someone they did not know, making many licensing standards irrelevant 
for children living with a relative or kin (Miller, ``Creating a Kin-
First Culture,'' July 1, 2017). For example:
     The Act requires only that licensing or approval standards 
established by the state or tribe are reasonably in accordance with 
recommended standards of national organizations for foster family homes 
related to admission policies, safety, sanitation, protection of civil 
rights, and use of the reasonable and prudent parenting standard 
(section 471(a)(10)(A) of the Act), and that the caregiver fully meet 
federal requirements under section 471(a)(20) of the Act (concerning 
criminal background checks for all foster parents). However, in 2000, 
ACF promulgated regulations that interpreted the Act to require that 
each state establish and apply its licensing or approval standards to 
all relative and non-relative foster family homes equally (45 CFR 
1355.20). A title IV-E agency may waive non-safety-related licensing or 
approval standards for relative foster family homes on a case-by-case 
basis (section 471(a)(10)(D) of the Act). In 2020, ACF reported that 42 
states, the District of Columbia, Puerto Rico, the Virgin Islands, and 
3 tribes reported using waivers for non-safety licensing standards for 
relative foster family homes. Examples of non-safety waivers include 
waiving requirements for the home itself (the physical dimensions of 
home, room size requirements, the size and location of bedrooms, well 
water testing, proximity of the relative foster care provider's home to 
the child's parents), financial standards of the kinship caregiver, 
pre-service or training standards, and the age and marital status of 
the caregiver (ACYF-CB-IM-20-08). However, the Act does not allow a 
title IV-E agency to establish a policy or procedure that provides a 
blanket waiver of the standards for licensing or approving relative 
foster family homes (section 471(a)(10)(D) of the Act). Subsequent 
research found that, partially as a result of the 2000 rule, more than 
half of states changed their licensing standards. Some states 
implemented stricter licensing standards for relatives than they had 
previously. Many states that had standards specific to licensing 
relatives and kin repealed those standards in their entirety (Beltran 
and Redlich Epstein, Improving Foster Care Licensing Standards around 
the United States: Using Research Findings to Effect Change, February 
2013).
    State licensing or approval standards developed for un-related 
foster parents also may be unnecessary for relative or kin foster 
parents. For example, many states require the same time-consuming and 
intensive foster parent training classes for relatives and kin as they 
do for non-relatives. However, relative caregivers may require a 
different level or type of foster parent training to take care of their 
kin, particularly when they already know the child for whom they are 
going to provide care. Non-relative

[[Page 9413]]

foster parents may need training about how to integrate a child into a 
home with which the child is unfamiliar, or how to determine the 
child's interests and skills. Similarly, in contrast with non-relative 
foster parents, who prepare for the arrival of children in foster care 
over months and years, relatives often receive a request to care for a 
child in emergency situations. In addition, relatives become licensed 
to care for a child who is a relative, not because they want to be a 
foster parent to children in foster care. Therefore, relative licensing 
standards that allow for training that is condensed and more relevant 
to relative and kinship families along with the necessary essential 
agency support for foster parents could pave the way to remove barriers 
to licensing relatives (Miller, ``Creating a Kin-First Culture,'' July 
1, 2017). Several examples of condensed training may be found on pages 
5 and 6 of ACYF-CB-IM-20-08.
    Title IV-E of the Act includes provisions requiring each agency to 
identify relatives of a child placed in foster care and to give 
priority consideration to relatives as foster care placements. 
Specifically, a title IV-E agency shall consider giving preference to 
an adult relative over a non-related caregiver when determining an out-
of-home placement for a child, provided that the relative caregiver 
meets all relevant state or tribal child protection standards (section 
471(a)(19) of the Act). Also, the Act requires that within 30 days 
after the removal of a child from their home, the title IV-E agency 
must exercise due diligence to identify and provide notice to certain 
relatives that the child has been or is being removed from the home, 
explain the options for relatives to participate in the care and 
placement of the child, describe how to become a foster family home, 
describe the additional services and supports that are available to the 
relative, as well as how a relative guardian of the child may 
participate in the title IV-E Kinship Guardianship Assistance Program 
if the title IV-E agency elected to operate the optional program 
(section 471(a)(29) of the Act).
    This NPRM would allow a title IV-E agency to adopt one set of 
licensing or approval standards for all relative or kinship foster 
family homes that is different from the licensing or approval standards 
used for non-relative foster family homes. ACF encourages title IV-E 
agencies to adopt licensing or approval standards for all relative or 
kinship foster family homes that place as few burdens on such families 
as possible, consistent with ensuring the safety and wellbeing of 
children in foster care. Specifically, ACF encourages title IV-E 
agencies to strongly consider developing standards for relative and 
kinship foster family homes that meet only the requirements in the Act 
described earlier (i.e., section 471(a)(10)(A) and (a)(20)), and not 
additional standards the agency requires non-relative foster family 
homes to meet. This eliminates the need for agencies to issue non-
safety related waivers to relatives on a case-by-case basis which can 
delay the licensure process.
    Finally, title IV-E of the Act and regulations require title IV-E 
agencies to provide a periodic review of the standards referred to in 
the preceding paragraph and amounts paid as foster care maintenance 
payments and adoption assistance to assure their continuing 
appropriateness (section 471(a)(11) of the Act; 45 CFR 1356.21(m)). The 
NPRM would also revise this requirement to assure that the agency 
provides a licensed or approved relative and kinship foster family home 
the same amount of foster care maintenance payments that would have 
been made if the child was placed in a non-related foster family home.

III. Section-by-Section Discussion of Proposed Regulatory Changes

Section Sec.  1355.20

    ACF proposes to revise the definition of ``foster family home'' by 
removing ``Foster family homes that are approved must be held to the 
same standards as foster family homes that are licensed[.]'' and 
replacing it with ``Agencies may establish foster family home licensing 
or approval standards for all relative or kinship foster family homes 
that are different from standards for non-relative foster family 
homes.'' This would allow a title IV-E agency to establish a set of 
foster family home licensing or approval standards that apply to all 
relative or kinship foster family homes, and that are different from 
non-relative foster family homes. An agency may also designate 
different names for the different type of standards. For example, an 
agency may designate the term ``approval'' to relative foster family 
home standards for relatives, and ``licensing'' to non-relative foster 
family homes. However, all standards and foster family homes must meet 
the requirements under title IV-E of the Act.
    As a result of this NPRM, a title IV-E agency would be able to 
remove a possible barrier to claiming title IV-E FCMP on behalf of an 
otherwise eligible child who is placed in a licensed or approved 
relative or kinship foster family home. For example, the agency could 
require that relative and kinship families only meet the licensing 
requirements in the Act stated earlier, and not additional standards 
the agency requires non-relative foster family homes to meet. Or, the 
agency could implement state or tribal licensing standards for all 
relative or kinship foster family homes to extend age limits for 
relative or kinship foster care providers; allow relative children to 
share sleeping spaces; disregard certain income, transportation, 
literacy, language, and education requirements; and remove 
disqualifications for non-child-related past crimes such as issuing bad 
checks (Beltran and Redlich Epstein, Improving Foster Care Licensing 
Standards around the United States: Using Research Findings to Effect 
Change, February 2013; ; ``How can we prioritize kin in the home study 
and licensure process, and make placement with relatives the norm?'' 
Casey Family Programs, 2020.). A title IV-E agency has the discretion 
to define who is a relative or kinship provider in reference to this 
regulatory change.
    This NPRM proposes to allow title IV-E agencies to establish a set 
of foster family home licensing or approval standards that apply to all 
relative or kinship foster family homes, for several reasons. First, 
this proposed change is consistent with long-standing recommendations 
of stakeholders and experts in child welfare to license or approve more 
relative and kinship foster family homes to significantly increase the 
services and financial resources available to relative and kinship 
caregivers., ACF has heard from stakeholders and discussed their 
recommendations. Second, placing children in licensed or approved 
relative foster family homes has multiple benefits to relatives and 
children. Third, the proposed change allows title IV-E agencies more 
flexibility without compromising child safety and well-being.
    The current regulation requires the same licensing or approval 
standards for all foster family homes. This can lead to placing 
children with unlicensed relative foster family caregivers because some 
relatives are not able to meet the agency's licensing or approval 
standards. (Children's Defense Fund. Recommendations to Ensure 
Children's Well-being through Support of Kinship Caregivers). 
Stakeholders in the child welfare community have long advocated for a 
change to federal regulations that would remove common licensing 
barriers for relatives and kin, and allow foster family home licensing 
or approval standards that reflect the unique needs and circumstances 
of relative and

[[Page 9414]]

kinship caregivers (``How can we prioritize kin in the home study and 
licensure process, and make placement with relatives the norm?'' Casey 
Family Programs, 2020). Allowing more relatives and kin to become 
licensed or approved as foster parents would significantly increase the 
services and financial resources available to kin caregivers. (Foster 
Family-based Treatment Association. The Kinship Treatment Foster Care 
Initiative Toolkit. Hackensack, NJ: Foster Family-Based Treatment 
Association, 2015, Page 14). Most children in nonparental care lived 
with grandparents (63%), others lived with foster parents (15%), some 
of whom were related, or with other relatives and nonrelatives such as 
aunts, godparents, or friends (22%) (Radel, Bramlett, Chow, Waters, 
2016). Many relatives who care for their kin are older, more likely to 
be single, more likely to be African American, more likely to live in 
poverty, and more likely to be less well educated (Bramlett, Radel, 
Chow, 2017) (U.S. Government Accountability Office, Child Welfare and 
Aging Programs: HHS Could Enhance Support for Grandparents and Other 
Relative Caregivers (GAO-20-434), July 2020);). When children are 
placed with relative caregivers, it is most often in emergency 
situations which may result in unanticipated expenses. Many relatives, 
especially those on a fixed income cannot financially afford to care 
for their kin in the child welfare system unless they receive support. 
Relatives who do not meet licensing standards are not eligible for 
title IV-E FCMP and instead rely on financial assistance from Temporary 
Assistance for Needy Families (TANF). TANF typically provides less than 
half of the monthly FCMP. Lower foster care payments for kinship care 
providers negatively affects the number of relatives that can care for 
children (``How can we prioritize kin in the home study and licensure 
process, and make placement with relatives the norm?'' Casey Family 
Programs, 2020). Thus, relatives are often in greater need of financial 
support; providing care for a child who has been removed from home 
places financial strains on the relatives providing that care. This 
NPRM can help low-income families who are adversely affected by poverty 
and struggling to raise their kin by providing financial assistance to 
maintain the child in the relative's home until the child can be 
reunified.
    Second, allowing a title IV-E agency to establish different foster 
family home licensing or approval standards for all relative or kinship 
foster family homes so that more children can be placed with relatives 
and kin has multiple benefits to relatives and to children. Research 
confirms that children in foster care often do best when placed with 
relatives and kin and that family connections are critical to healthy 
child development and a sense of belonging (Miller, ``Creating a Kin-
First Culture,'' July 1, 2017). Relative and kinship care also helps to 
preserve children's cultural identity and relationship to their 
community. This regulation would allow children placed with a relative 
or kin to remain connected to their families, communities, and schools. 
For youth in foster care, having a strong cultural identity can lead to 
greater self-esteem, higher education levels, improved coping 
abilities, and decreased levels of loneliness and depression (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/). For example, in American Indian 
and Alaskan Native communities, the cultural knowledge children acquire 
from grandparents, other adult family members or close family friends 
who are caring for them can be critical to developing the survival 
skills and resilience needed in the face of multiple challenges and 
overcoming barriers to positive outcomes. Culture and kinship 
relationships are strong resources that support their children in their 
care (Generations United and National Indian Child Welfare Association. 
(2020). TOOLKIT--American Indian and Alaska Native Grandfamilies: 
Helping Children Thrive Through Connection to Family and Cultural 
Identity. www.gu.org and www.nicwa.org). Further, research indicates 
that children living with relatives experience fewer behavioral 
problems and higher placement stability rates compared to children 
living with non-relatives in foster care (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/; Foster Family-based Treatment Association, The Kinship 
Treatment Foster Care Initiative Toolkit, 2015). However, restrictive 
licensing standards and inadequate information about standards places 
relatives at a disadvantage and reduce the positive effects associated 
with kinship care (``How can we prioritize kin in the home study and 
licensure process, and make placement with relatives the norm?'' Casey 
Family Programs, 2020).
    ACF believes that title IV-E agencies can develop different foster 
family home licensing or approval standards for relatives in a manner 
that does not compromise child safety and well-being. The Act requires 
that all foster family home licensing standards be reasonably in accord 
with recommended standards of national organizations concerned with 
these standards for foster family homes related to admission policies, 
safety, sanitation, protection of civil rights and use of the 
reasonable and prudent parenting standard (section 471(a)(10) of the 
Act). Further, the Act specifies that a child is only eligible to 
receive a title IV-E FCMP if placed in a licensed or approved 
placement, which includes federal requirements that the foster parent 
fully meet the requirements concerning criminal background checks 
(section 471(a)(20) of the Act). A child is not eligible for FCMP if 
the criminal records check reveals that the prospective foster or 
adoptive parent has been convicted of a felony related to child abuse 
or neglect, spousal abuse, a crime against a child or children 
(including child pornography), or a crime involving violence, including 
rape, sexual assault, or homicide. In addition, a child is not eligible 
for FCMP if the criminal record checks reveal that within the last 5 
years, the prospective foster or adoptive parent has been convicted of 
a felony involving physical assault, battery, or a drug-related offense 
(Section 471(a)(20)(A) of the Act; 45 CFR 1356.30). This NPRM does not 
propose to change those important safety requirements for relative or 
kinship caregivers. Therefore, a title IV-E agency may choose to 
develop standards for relative and kinship foster family homes that 
meet only the federal requirements outlined in the Act. As previously 
discussed, research shows that children placed in foster care with 
relatives are just as safe, or safer, when compared with children 
placed with unrelated foster families (Beltran and Redlich Epstein, 
Improving Foster Care Licensing Standards around the United States: 
Using Research Findings to Effect Change, February 2013).
    Finally, we propose to revise the definition of ``foster family 
home'' by removing ``[T]he term may include group homes, agency-
operated boarding homes or other facilities licensed or approved for 
the purpose of providing foster care by the State or Tribal agency 
responsible for approval or licensing of such facilities.'' Public Law 
115-123, the Family First Prevention Services

[[Page 9415]]

Act, amended section 472(c)(1)(A)(ii) of the Act to limit the 
definition of a foster family home to the ``home of an individual or 
family,'' and to require that the foster parent resides in the home 
with the child. Title IV-E agencies are required to comply with these 
statutory amendments regardless of the regulatory language, so this 
change is merely a technical amendment that aligns the definition with 
the law and clarifies that these entities are not homes of individuals 
and therefore, not considered foster family homes.
    With these proposed revisions, the definition would read, `` 
`Foster family home' means, for the purpose of title IV-E eligibility, 
the home of an individual or family licensed or approved as meeting the 
standards established by the licensing or approval authority(ies), that 
provides 24-hour out-of-home care for children. The licensing authority 
must be a state authority in the state in which the foster family home 
is located, a tribal authority with respect to a foster family home on 
or near an Indian Reservation, or a tribal authority of a tribal title 
IV-E agency with respect to a foster family home in the tribal title 
IV-E agency's service area. Agencies may establish foster family home 
licensing or approval standards for all relative or kinship foster 
family homes that are different from standards for non-relative foster 
family homes. Anything less than full licensure or approval is 
insufficient for meeting title IV-E eligibility requirements. Title IV-
E agencies may, however, claim title IV-E reimbursement during the 
period of time between the date a prospective foster family home 
satisfies all requirements for licensure or approval and the date the 
actual license is issued, not to exceed 60 days.''

Section Sec.  1356.21

    The NPRM would also revise section Sec.  1356.21(m) to require that 
title IV-E agencies review the amount of foster care maintenance 
payments to assure that the agency provides a licensed or approved 
relative and kinship foster family home the same amount of foster care 
maintenance payments that would have been made if the child was placed 
in a non-related foster family home. This proposed revision codifies 
the holding in Miller v. Youakim, 440 U.S. 125 (1979). In Miller, the 
Supreme Court established that children placed with relative foster 
homes that met approval or licensing standards were full participants 
in the IV-E program. The Court stated that ``neither the legislative 
history nor the structure of the [Social Security] Act indicates that 
Congress intended to differentiate among neglected children based on 
their relationship to their foster parents.'' (Id. at 138-139). 
Further, the definition of ``foster care maintenance payments'' for IV-
E purposes is based on the costs of the services and supplies provided 
to the foster child, not the relationship of the child to the foster 
parent (42 U.S.C. 675(4)(A)). This proposed revision means that a title 
IV-E agency must use the same payment schedule(s) for relative and non-
relative licensed or approved foster family homes. The agency may not 
establish a separate payment schedule for licensed or approved relative 
and kinship foster family homes. For example, a title IV-E agency has a 
foster care maintenance payment schedule of monthly payments based on 
age and including basic maintenance and difficulty-of-care Levels 1, 2 
& 3. The agency determines that, if placed with a non-relative, the 
child of a certain age in title IV-E foster care requires level 3 care 
at $31.00 per day. However, the child is placed in a relative foster 
family home that is licensed or approved using separate licensing 
standards, established consistent with this proposal. The amount of the 
level 3 foster care maintenance payment based on the child's age must 
also be $31.00 per day.
    With this proposed revision, the regulation would read, ``(m) 
Review of payments and licensing standards. In meeting the requirements 
of section 471(a)(11) of the Act, the title IV-E agency must review at 
reasonable, specific, time-limited periods to be established by the 
agency: (1) The amount of the payments made for foster care maintenance 
to assure their continued appropriateness, and that the amount made to 
a licensed or approved relative or kinship foster family home is the 
same as the amount that would have been made if the child was placed in 
a licensed or approved non- relative foster family home; (2) The amount 
of the payments made for adoption assistance to assure their continued 
appropriateness; and (3) The licensing or approval standards for child 
care institutions and foster family homes.''

Equity Impact

    This NPRM supports the Administration's priority of advancing 
equity for those historically underserved and adversely affected by 
persistent poverty and inequality (U.S. President. Executive Order. 
``Executive Order on Advancing Racial Equity and Support for 
Underserved Communities Through the Federal Government, Executive Order 
13985 of January 20, 2021.''). The current regulation prohibits a title 
IV-E agency from uniformly adopting separate foster family home 
licensing or approval standards for relative or kinship caregivers. 
This disadvantages lower income prospective relative caregivers, some 
of whom are disqualified from providing care as a result of not meeting 
income and other standards established for licensing or approving 
foster family homes.
    This NPRM would especially provide a support to low-income 
prospective relative caregivers, many of whom are families of color, 
are from underserved rural areas, or are members of other communities 
in which long-term systemic factors such as poverty hamper families 
from making intergenerational progress. Ethnically and culturally 
diverse populations are disproportionately represented in relative and 
kinship families. ``While Black or African American individuals 
represent just 13% of the U.S. population, they make up nearly a 
quarter of all children in households where a grandparent is 
responsible for the needs of the child'' (Advisory Council to Support 
Grandparents Raising Grandchildren with Assistance from the HHS 
Administration for Community Living. Supporting Grandparents Raising 
Grandchildren (SGRG) Act, Initial Report to Congress. Washington, DC: 
Author, p. 4, November 16, 2021.). ``Similarly, American Indian and 
Alaska Natives make up only 1.3% of the U.S. population, but their 
representation in grandparent-led households where the grandparent is 
providing for most of their needs, is more than double that rate (U.S. 
Census Bureau, 2019). The available data on grandparents responsible 
for grandchildren suggests that underserved racial and ethnic 
populations are disproportionately taking responsibility for 
grandchildren.'' (Advisory Council to Support Grandparents Raising 
Grandchildren with assistance from the HHS Administration for Community 
Living. [November 16, 2021]. Supporting Grandparents Raising 
Grandchildren (SGRG) Act, Initial Report to Congress. Washington, DC: 
Author, p. 12). Moreover, many individuals in these communities face 
simultaneous, multiple barriers when attempting to provide care to a 
relative who has been removed from their home.
    Policies that expand access to FCMPs can have an especially strong 
impact on underserved groups. Encouraging and removing barriers to 
kinship placement also is consistent with cultural norms of some 
underserved groups that traditionally rely more heavily on kin

[[Page 9416]]

and family in times of need. For example:
     Children age 3 to 5 who are the subject of a child 
maltreatment report in rural areas and those in households with incomes 
less than 50 percent of federal poverty level were more likely to be 
placed in informal kinship settings than similarly situated children in 
urban areas (Walsh, W.A. Informal Kinship Care Most Common Out-of-Home 
Placement After an Investigation of Child Maltreatment [Fact Sheet no. 
24]. Durham, NH: University of New Hampshire, Carsey Institute, 2013.).
     African American families rely on extended family and 
other informal systems of care not only because these informal systems 
are cultural strengths, but because African American children 
historically were excluded from public and private sector child welfare 
programs and supports (U.S. Government Accountability Office, Child 
Welfare and Aging Programs: HHS Could Enhance Support for Grandparents 
and Other Relative Caregivers (GAO-20-434), July 2020).
     Traditionally, grandparents and other family members 
assume integral roles in raising children within American Indian/Alaska 
Native communities. This type of extensive familial support system 
helps parents to pass on to their children the knowledge of customs, 
culture, and language essential to community survival and well-being 
(Capacity Building Center for Tribes. Engaging and Supporting Native 
Grandfamilies. 2022. https://tribalinformationexchange.org/files/products/GrandfamiliesResourceList2022.pdf; Lewis, Jordan & Boyd, Keri 
& Allen, James & Rasmus, Stacy & Henderson, Tammy. (2018). ``We Raise 
our Grandchildren as our Own:'' Alaska Native Grandparents Raising 
Grandchildren in Southwest Alaska. Journal of Cross-Cultural 
Gerontology. 33.10.1007/s10823-018-9350-z.).

IV. Regulatory Process Matters

Regulatory Planning and Review Executive Order 12866 and Executive 
Order 13563

    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 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 
$100 million or more in any 1 year, or adversely and materially 
affecting a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, and tribal 
governments or communities (also referred to as ``economically 
significant''); (2) create a serious inconsistency or otherwise 
interfering with an action taken or planned by another agency; (3) 
materially alter the budgetary impacts of entitlement grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order. A regulatory impact analysis must be prepared for 
rules determined to be significant regulatory actions within the scope 
of section 3(f)(1) of Executive Order 12866, and all significant 
regulatory actions are subject to review by the Office of Management 
and Budget (OMB).
    ACF consulted OMB and determined that this proposed rule meets the 
criteria for a significant regulatory action under Executive Order 
12866 and subject to OMB review. Based on ACF's estimates of the likely 
costs associated with this proposal, OMB designated this proposed rule 
as a significant regulatory action within the scope of section 3(f)(1) 
of Executive Order 12866.
    The estimated cost and transfer impacts of this regulatory proposal 
are provided below (see the sections titled ``Federal cost estimate 
with implementation of this proposal in a final rule'' and ``Estimated 
costs of this proposal to title IV-E agencies''). As described in the 
Section-by-Section above, children in foster care do best when placed 
with relatives and kin and family connections are critical to healthy 
child development and a sense of belonging. Relative and kinship care 
also helps to preserve children's cultural identity and relationship to 
their family, community and school, which can help buffer depressive 
symptoms. Children living with relatives experience fewer behavioral 
problems and higher placement stability rates then children living with 
un-related foster parents. Situating relatives and kin to become a 
licensed or approved foster care placement is important, in part, 
because it allows families to receive financial support through FCMPs 
(sections 472(b)(1) and (c)(1) of the Act and section I.C. of ACYF-CB-
PI-10-11), and it meets one component of eligibility for the title IV-E 
Kinship Guardianship Assistance Program, which can provide longer-term 
financial support and benefits to a family that provides permanency to 
a child who cannot safely return home (section 473(d)(3)(A)(i)(II) of 
the Act). Relative and kinship placements also support cultural norms 
of some underserved groups that traditionally rely more heavily on kin 
and family in times of need. In addition, there is an increasing 
shortage of qualified foster parents, and research demonstrates that 
when a parent(s) is not able to safely care for their child, it is best 
for child to be cared for by family who step forward to provide the 
child(ren) with a loving home.
    Alternatives Considered: We considered providing a federal 
definition of relative and kinship, which would allow title IV-E 
agencies to apply relative standards to only those who would meet the 
federal definition, rather than a potentially broader state/tribal 
definition of these terms. For example, one federal definition could 
allow only a subset of relatives to whom the standards would apply, 
such as those who meet the former Aid to Families with Dependent 
Children income standards. However, we determined that the title IV-E 
agency should continue to define relative and kin because providing a 
federal definition could interfere with the goal of the proposal to 
provide FCMPs on behalf of a child in foster care in need. In addition, 
providing a federal definition of relative and kinship would be a 
burden on title IV-E agencies because it would likely require many 
states and Tribes to change their definitions in policy regulations or 
statutes. Without this NPRM, title IV-E agencies must maintain the same 
licensing or approval standards for relative and non-related foster 
family homes and may continue issuing non-safety related waivers on a 
case-by-case basis for relatives that do not meet the agency's foster 
family home standards.

Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) (see 5 U.S.C. 605(b) as 
amended by the Small Business Regulatory Enforcement Fairness Act) 
requires federal agencies to determine, to the extent feasible, a 
rule's impact on small entities, explore regulatory options for 
reducing any significant impact on a substantial

[[Page 9417]]

number of such entities, and explain their regulatory approach. The 
term ``small entities,'' as defined in the RFA, comprises small 
businesses, not-for-profit organizations that are independently owned 
and operated and are not dominant in their fields, and governmental 
jurisdictions with populations of less than 50,000. HHS considers a 
rule to have a significant impact on a substantial number of small 
entities if it has at least a 3 percent impact on revenue on at least 5 
percent of small entities. However, the Secretary certifies, under 5 
U.S.C. 605(b), as enacted by the RFA (Pub. L. 96-354), that this rule 
would not result in a significant impact on a substantial number of 
small entities. This proposed rule does not affect small entities 
because it is applicable only to state and tribal title IV-E agencies. 
Therefore, an initial regulatory flexibility analysis is not required 
for this notice.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) was 
enacted to avoid imposing unfunded federal mandates on state, local, 
and tribal governments, or on the private sector. Section 202 of UMRA 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any 1 year of $100 
million in 1995 dollars, updated annually for inflation. In 2022, that 
threshold is approximately $165 million. This rule does not contain 
mandates that would impose spending costs on state, local, or tribal 
governments in the aggregate, or on the private sector, in excess of 
the threshold.

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 2000 requires federal agencies to determine whether a policy or 
regulation may negatively affect family well-being. If the agency 
determines a policy or regulation negatively affects family well-being, 
then the agency must prepare an impact assessment addressing seven 
criteria specified in the law. ACF believes it is not necessary to 
prepare a family policymaking assessment (see Pub. L. 105-277) because 
the action it takes in this NPRM would not have any impact on the 
autonomy or integrity of the family as an institution.

Executive Order 13132

    Executive Order 13132 requires federal agencies to consult with 
state and local government officials if they develop regulatory 
policies with federalism implications. Federalism is rooted in the 
belief that issues that are not national in scope or significance are 
most appropriately addressed by the level of government close to the 
people. This rule would not have substantial direct impact on the 
states, on the relationship between the federal government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government because allowing each title IV-E agency to 
adopt foster family home licensing or approval standards for relative 
foster family homes is optional and not mandatory. Therefore, in 
accordance with section 6 of Executive Order 13132, it is determined 
that this action does not have sufficient federalism implications to 
warrant the preparation of a federalism summary impact statement.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (Pub. L. 104-13) seeks to 
minimize government-imposed burden from information collections on the 
public. In keeping with the notion that government information is a 
valuable asset, it also is intended to improve the practical utility, 
quality, and clarity of information collected, maintained, and 
disclosed.
    The Paperwork Reduction Act defines ``information'' as any 
statement or estimate of fact or opinion, regardless of form or format, 
whether numerical, graphic, or narrative form, and whether oral or 
maintained on paper, electronic, or other media (5 CFR 1320.3(h)). This 
includes requests for information to be sent to the government, such as 
forms, written reports and surveys, recordkeeping requirements, and 
third-party or public disclosures (5 CFR 1320.3(c)). There is no burden 
to the Federal government or to title IV-E agencies as a result of this 
proposed regulation. First, it is optional for a title IV-E agency to 
develop separate licensing standards for relative and kinship foster 
family homes. If the agency elects to do so, there are no new reporting 
requirements. Second, title IV-E agencies are already required by 
section 471(a)(11) of the Act to conduct periodic reviews of the rates 
and standards related to foster care maintenance payments. Therefore, 
the regulatory proposal that during these reviews, agencies ensure that 
the rate of FCMP to relative and non-related foster family homes is 
equal, does not impose any new reporting requirements. Finally, title 
IV-E agencies were required to make changes consistent with Public Law 
115-123, the Family First Prevention Services Act. Therefore, the 
proposed technical change to bring federal regulations up to date with 
title IV-E of the Act does not impose any new reporting requirements.

Annualized Cost to the Federal Government

    Total Projections to Implement Final Rule. The estimate for this 
NPRM was derived using fiscal year (FY) 2019 data from the Adoption and 
Foster Care Analysis and Reporting System (AFCARS) on title IV-E 
relative foster family home placements and FY 2019 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).'' We did not use FY 2020 or 
2021 data from AFCARS because such data would likely reflect anomalies 
due to the COVID19 public health emergency period.
    If this proposed regulatory action becomes final, ACF estimates 
that there would be annual increases in the number of title IV-E 
relative foster family home placements and annual increases in federal 
costs for foster care maintenance payments (FCMPs) and administration. 
ACF estimates that the proposed regulatory change would cost the 
federal government $28,753,988 in title IV-E FFP i.e., FCMPs and 
administration, the first year after the rule becomes final and $3.085 
billion over a total of 10 years.
    Assumptions: ACF made several assumptions when calculating the cost 
of FCMPs and administrative costs.
     First, we anticipate that without any changes to the 
regulation, the annual caseload growth rate (i.e., the increase in 
title IV-E relative and non-relative foster family home placements) 
would be 1 percent, and the annual title IV-E claiming growth factor 
would be two percent. We retain this same annual two percent claiming 
growth factor in estimating the FFP to implement the final rule because 
relative and non-relative foster family homes receive the same amount 
of title IV-E foster care maintenance payments.
     Second, if the NPRM becomes final, we assume a varied 
implementation rate of title IV-E relative and kinship foster family 
home placements. The estimate assumes a slow rate of change because 
agencies may not immediately decide to implement new or revised 
relative foster family home licensing or approval standards. In 
addition, states and tribes vary on whether policy, regulation or 
statutory change must precede such changes.

[[Page 9418]]

     Finally, the title IV-E participation rate for relative 
foster family home placements was 27.6 percent in FY 2019. Conversely, 
the title IV-E participation rate for other foster care placements was 
47.7 percent in FY 2019. We assume that this percentage would increase 
for relative foster family home placements over time as a result of the 
proposed regulation because it allows different licensing or approval 
standards for relative and non-relative foster family home placements. 
We also assume that the difference in the title IV-E participation rate 
of relatives and non-relatives is almost entirely due to the use of the 
same licensing or approval standard for both relative and non-relative 
foster family home placements. We anticipate incremental changes in the 
IV-E participation rate for relative and kinship foster family home 
placements over a total of 10 years, and that by year ten, this rate 
would increase to 41.7 percent.
    Average title IV-E FCMP and Administrative costs per child. To 
determine the FY 2019 average FFP cost per child, we divided the total 
number of children in foster care in FY 2019 receiving title IV-E 
maintenance payments (170,446) by the total FFP claimed on the Form CB-
496 for this time period. This resulted in an average title IV-E FCMP 
cost of $9,240 per child; and an average title IV-E administrative cost 
of $12,907 (This is the baseline FFP). We used the annual average per 
child costs to calculate the FFP that would be claimed over a total of 
10 years with and without implementation of the proposed rule. We made 
an assumption that 15 percent of the increased relative placement title 
IV-E caseload in each year would have already been subject to title IV-
E claiming for administrative cost purposes (without the NPRM) based on 
current law that allows these costs for the period specified in the 
law, up to 12 months, that an application for licensure is pending (see 
section 472(i)(1)(A) of the Act).
Federal Cost Estimates Without Implementation of the Proposed Rule
    Line 1. Estimates of the number of title IV-E relative foster 
family home placements. As of September 30, 2019, there were 36,953 
title IV-E relative foster family home placements. Applying our 
assumptions, on line 1 on the table below, we display the annual 
increases in title IV-E relative placements without implementation of 
the proposed rule for 5 different years, beginning with FY 2023 and 
ending with 2032. For example, in FY 2023, there would be 37,322 title 
IV-E relative foster family home placements if the regulation is not 
implemented: 36,953 + (36,953 x .01) = 37,322.
    Lines 2 through 5. Estimates of FFP for title IV-E relative foster 
family home placements. To determine increases in the annual FCMP and 
administrative costs of title IV-E relative foster family home 
placements, we multiplied the average annual federal cost per child 
(lines 2 and 3) by the annual number of title IV-E relative foster home 
placements on line 1. On the table below, line 4 displays the increased 
FCMP costs and line 5 displays increased administrative costs for 5 
different years beginning with 2023 and ending with 2032. The baseline 
FCMP costs for 2019 is $9,240 x 36,953 = $341,462,572. The baseline 
administrative costs for 2019 is $12,907 x 36,953 = $476,934,437.
Federal Cost Estimate With Implementation of This Proposal in a Final 
Rule
    Lines 6 and 7. Number of title IV-E relative foster family home 
placements. On line 6 of the table below, we estimate the annual 
increases in title IV-E relative foster family home placements if the 
proposed rule becomes final. We used a caseload growth rate of 5 
percent in year 1, 15 percent in year 2, 25 percent in year 3, 45 
percent in year 5. By year 10, this implementation rate is expected to 
reach 70 percent based on our assumptions described earlier. On line 7 
of the table below, we determined the annual number of new title IV-E 
relative foster family home placements as a result of the regulation. 
To calculate the annual number of new title IV-E relative foster family 
home placements due to implementation of the final rule, we subtracted 
the projected caseload without application of the final rule on line 1 
from the projected caseload of the proposed rule on line 6. For 
example, in 2023 there would be 1,392 new title IV-E relative foster 
family home placements: 38,714-37,323 = 1,392.
    Lines 8 through 10. Annual federal costs of title IV-E relative 
foster family home placements. Lines 8 and 9 display the annual 
increases in FCMPs and administrative costs for the new title IV-E 
relative foster family home placements (on line 6) if the final rule is 
implemented. To determine the annual federal cost of the NPRM on lines 
8 and 9, we multiplied the annual number of new title IV-E relative 
foster family home placements on line 6 by the average child costs for 
FCMPs and administration on lines 2 and 3. This information is 
displayed for 5 different years beginning with 2023 and ending with 
2032. For example, on line 8, the cost in 2023 for FCMPs is 
approximately $13,117,787 (1,392 children x $9,425 average FCMP). Line 
10 displays the annual incremental federal costs of the NPRM if it 
becomes a final rule.

[[Page 9419]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                              Estimates without regulatory changes
                                       -----------------------------------------------------------------------------------------------------------------
                                                                                                                                         Ten year total
                                         2019 Baseline   2023 (Year 1)   2024 (Year 2)   2025 (Year 3)   2027 (Year 5)  2032 (Year 10)        cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Number of title IV-E relative                36,953          37,323          37,696          38,073          38,838          40,819  ................
 placements @1% growth................
2. Avg. title IV-E FCMP FFP claim per           $9,240          $9,425          $9,614          $9,806         $10,202         $11,264  ................
 child@2% claiming growth factor......
3. Avg. title IV-E Administrative cost         $12,907         $13,165         $13,428         $13,696         $14,250         $15,733  ................
 FFP claim per child@2% claiming
 growth factor........................
4. FCMP cost..........................    $341,462,572    $351,774,691    $362,398,575    $373,343,289    $396,233,652    $459,790,346    $4,036,424,435
5. Administrative cost................    $476,934,437    $491,337,785    $506,176,589    $521,463,509    $553,435,395    $642,207,572    $5,637,835,507
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated FFP with proposed regulatory changes
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             2019            2023            2024            2025            2027            2032           Ten year
                                                              (Year 1)        (Year 2)        (Year 3)        (Year 5)       (Year 10)        total cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
6. Number of title IV-E relative                36,953          38,714          41,849          45,042          51,609          61,680  ................
 placement @varied caseload growth
 rates................................
7. Total annual increase in title IV-E  ..............           1,392           4,153           6,970          12,771          20,861  ................
 relative placements..................
8. Annual increase in FCMP costs......  ..............     $13,117,787     $39,926,838     $68,344,565    $130,295,804    $234,976,401    $1,304,789,018
9. Increase in administrative costs...  ..............     $15,636,201     $50,233,323     $89,758,368    $175,938,591    $324,690,283    $1,780,051,762
10. Total incremental increase in FFP.  ..............     $28,753,988     $90,160,161    $158,102,933    $306,234,395    $559,666,684    $3,084,840,780
--------------------------------------------------------------------------------------------------------------------------------------------------------
Title IV-E agency estimates with proposed regulatory changes
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             2019            2023            2024            2025            2027            2032           Ten year
                                                                                                              (Year 5)       (Year 10)        total cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
11. Maintenance Portion--Incremental    ..............     $10,054,421     $30,602,817     $52,384,220     $99,868,132    $180,102,915    $1,000,084,711
 Non-Federal Share (Using FY 2019 Avg.
 FMAP rate of 56.61%).................
12. Administration Portion--            ..............     $15,636,201     $50,233,323     $89,758,368    $175,938,591    $324,960,283    $1,780,051,762
 Incremental Non-Federal Share (50%
 FFP).................................
13. Total Incremental Increase in Non-  ..............     $25,690,622     $80,836,140    $142,142,587    $275,806,723    $504,793,199    $2,780,136,473
 Federal Share........................
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Estimated costs of this proposal to title IV-E agencies. Title IV-E 
agencies may claim reimbursement for the federal cost of FCMPs and 
administrative costs, and the title IV-E agency pays its share with 
state or tribal funds. Line 11 displays the agency's estimated FCMP 
costs and line 12 displays the estimated agency costs for 
administration. Line 13 displays the total incremental increase in cost 
for the state/tribal share. This information is displayed for 5 
different years beginning with 2023 and ending with 2032. The estimates 
provided are calculated using the national average federal medical 
assistance percentage (FMAP) rate of 56.61 percent for FY 2019 and an 
administrative cost FFP rate of 50 percent. This proposal is optional; 
therefore, agencies are not required to incur any costs.

Accounting Statement

    From a society-wide perspective, many of the effects estimated 
above are transfers. We seek comment on estimation of the portion that 
represents new resource use attributable to the proposed rule. 
Preliminary, as shown in the table below, the full amounts are 
categorized as transfers--from either the federal government or Title 
IV-E agencies to Title IV-E participants.

----------------------------------------------------------------------------------------------------------------
                                                                                      Units
                                          Primary estimate     -------------------------------------------------
              Category                       (millions)                          Discount rate   Period covered
                                                                 Year dollars         (%)            (years)
----------------------------------------------------------------------------------------------------------------
Federal Budget Transfers                                  $439            2019               7                10
 (annualized)......................
                                                           362            2019               3                10
----------------------------------------------------------------------------------------------------------------
From/To............................   From: Federal government    To: Title IV-E participants
----------------------------------------------------------------------------------------------------------------
Other Transfers (annualized).......                        395            2019               7                10
                                                           326            2023               3                10
----------------------------------------------------------------------------------------------------------------
From/To............................  From: Title IV-E agencies    To: Title IV-E participants
----------------------------------------------------------------------------------------------------------------

V. Tribal Consultation Statement

    Executive Order 13175, Consultation and Coordination With Indian 
Tribal Governments, requires agencies to consult with Indian tribes 
when regulations have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes. This NPRM does not propose 
any mandatory action on Tribal governments or impose any tribal burden 
or cost, and therefore does not have substantial direct effects on 
Indian tribes. Rather it proposes to provide tribal title IV-E agencies 
an option for implementing the foster family home licensing 
requirements for the title IV-E foster care program. Accordingly, a 
tribal title IV-E agency can adopt separate licensing or approval

[[Page 9420]]

standards for relative or kinship foster family homes, but is not 
required to do so. We intend to notify tribal title IV-E agency 
leadership about the opportunity to provide comment on the NPRM no 
later than the day of publication. Further, shortly after publication 
of the NPRM, we plan to hold briefing sessions with tribal title IV-E 
agencies and any other interested tribe on the contents of the NPRM.
    January Contreras, Assistant Secretary of the Administration for 
Children and Families, approved this document on January 20, 2023.

List of Subjects

45 CFR Part 1355

    Administrative costs, Adoption Assistance, Child welfare, Fiscal 
requirements (title IV-E), Grant programs--social programs, Statewide 
information systems, Adoption and foster care, Child welfare, Grant 
programs--social programs.

45 CFR Part 1356

    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).

    Dated: February 8, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.

    For the reasons set forth in the preamble, ACF proposes to amend 45 
CFR parts 1355 and 1356 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. In Sec.  1355.20, amend paragraph (a) by revising the definition of 
``Foster family home'' to read as follows:


Sec.  1355.20  Definitions.

    (a) * * *
    Foster family home means, for the purpose of title IV-E 
eligibility, the home of an individual or family licensed or approved 
as meeting the standards established by the licensing or approval 
authority(ies), that provides 24-hour out-of-home care for children. 
The licensing authority must be a state authority in the state in which 
the foster family home is located, a tribal authority with respect to a 
foster family home on or near an Indian Reservation, or a tribal 
authority of a tribal title IV-E agency with respect to a foster family 
home in the tribal title IV-E agency's service area. Agencies may 
establish one set of foster family home licensing or approval standards 
for all relative or kinship foster family homes that are different from 
the set of standards used to license or approve all non-relative foster 
family homes. Anything less than full licensure or approval is 
insufficient for meeting title IV-E eligibility requirements. Title IV-
E agencies may, however, claim title IV-E reimbursement during the 
period of time between the date a prospective foster family home 
satisfies all requirements for licensure or approval and the date the 
actual license is issued, not to exceed 60 days.
* * * * *

PART 1356--REQUIREMENTS APPLICABLE TO TITLE IV-E

0
3. The authority citation for part 1356 continues to read as follows:

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

0
4. Amend Sec.  1356.21 by revising paragraphs (m)(1) and (2), and 
adding paragraph (m)(3) to read as follows:


Sec.  1356.21  Foster care maintenance payments program implementation 
requirements.

* * * * *
    (m) * * *
    (1) The amount of the payments made for foster care maintenance to 
assure their continued appropriateness, and that the amount made to a 
licensed or approved relative or kinship foster family home is the same 
as the amount that would have been made if the child was placed in a 
licensed or approved non-relative foster family home;
    (2) The amount of the payments made for adoption assistance to 
assure their continued appropriateness; and
    (3) The licensing or approval standards for child care institutions 
and foster family homes.
* * * * *
[FR Doc. 2023-03005 Filed 2-13-23; 8:45 am]
BILLING CODE 4184-73-P