[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Proposed Rules]
[Pages 66752-66769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21274]



[[Page 66752]]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1355

RIN 0970-AD03


Safe and Appropriate Foster Care Placement Requirements for 
Titles IV-E and IV-B

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 (NPRM).

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SUMMARY: Federal law requires that state and tribal title IV-E/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. Federal law also requires that for children ages 
14 and over, agencies must consult with them about their case plans. To 
ensure agencies meet these and other related statutory requirements, 
ACF proposes to specify the steps agencies must take when implementing 
the case plan and case review requirements for children in foster care 
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 (all of whom are referred 
to under the umbrella term LGBTQI+ for purposes of this regulation).

DATES: In order to be considered, ACF must receive written comments on 
or before November 27, 2023. We intend to notify tribal title IV-E/IV-B 
agency leadership about the opportunity to provide comment on this NPRM 
no later than September 28, 2023.

ADDRESSES: You may submit comments, identified by the Regulatory 
Information Number (RIN), by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include the RIN number in 
subject line of the message.
    Instructions: All submissions received must include the agency name 
and RIN for this rulemaking. All comments received by the methods and 
due date specified above may be posted without change to 
www.regulations.gov, including any personal information provided. 
However, the Department may redact certain non-substantive content from 
comments before posting, including threats, hate speech, profanity, 
graphic images, or individually identifiable information about a third-
party individual other than the commenter. In addition, comments or 
material designated as confidential or not to be disclosed to the 
public will not be accepted. Comments may be redacted or rejected as 
described above without notice to the commenter, and the Department 
will not consider in rulemaking any redacted or rejected content that 
would not be made available to the public as part of the administrative 
record.

FOR FURTHER INFORMATION CONTACT: Kathleen McHugh, Director, Policy 
Division, Children's Bureau, (202) 205-8618. Telecommunications Relay 
users may dial 711 first. Email inquiries to [email protected]. 
Upon request, the Department will provide an accommodation or auxiliary 
aid to an individual with a disability who needs assistance to review 
the comments or other documents in the public rulemaking record for the 
proposed regulations. To schedule an appointment for this type of 
accommodation or auxiliary aid, please call (202) 205-8618 for 
assistance or email [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. Statutory Authority To Issue NPRM

    Titles IV-E and IV-B of the Social Security Act (the Act) require 
title IV-E/IV-B agencies (referred to as ``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.'' Section 
475(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). In order to receive IV-E and IV-B 
funds, title IV-E/IV-B agencies must have plans approved by ACF that 
provide for case plans and case review systems that meet these 
statutory requirements. Section 471(a)(16) and section 422(b).
    Additionally, in order to receive IV-E funds, states and tribes 
must certify in their 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 
. . .''. In addition, the preparation ``shall include . . . knowledge 
and skills relating to the developmental stages of the cognitive, 
emotional, physical, and behavioral capacities of a child.'' Section 
471(a)(24). Agencies must also ensure that at least one staff member at 
any child-care institution providing foster care receives this 
training. Section 471(a)(10).
    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 IV-E and IV-B, implementing regulations 
promulgated by the Secretary, and the states' approved state plans. 
Section 1123A.
    Section 1102 of the Act authorizes the Secretary to publish 
regulations as may be necessary for the efficient administration of the 
functions for which the Secretary is responsible under the Act.

II. Background

    Titles IV-E and IV-B of the Act set forth numerous requirements for 
state and tribal title IV-E/IV-B agencies (referred to as ``agencies'') 
to meet for children in foster care. This NPRM applies to the state or 
tribal agency administering or supervising the administration of the 
title IV-E and title IV-B plans.
    Titles IV-E and IV-B of the Act provide protections that are 
designed to ensure that while in foster care, children receive safe and 
proper care. As part of its title IV-E and IV-B plan, an agency must 
develop a case plan for each child in 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.'' (Title IV-
E, section 475(1)(B) of the Act). This

[[Page 66753]]

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 
(422(b), 471(a)(16), 475(1)(B), and 475(5)).
    In addition, the Act requires the agency to certify that foster 
parents are ``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'' 
(471(a)(24)). Finally, 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 
(471(a)(22)).

Overrepresentation of LGBTQI+ Children in Foster Care

    LGBTQI+ children are overrepresented in the foster care population. 
One recent confidential survey revealed that 32 percent \1\ of foster 
children ages 12-21 surveyed report that they identify as having a 
diverse sexual orientation or gender identity. 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 2.5 times as likely as heterosexual youth to experience a foster 
care placement.\2\
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    \1\ 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 LGBTQ2S Children and Youth in Foster Care (2021), The 
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.
    \2\ 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 LGBTQI+ juvenile-justice involved youth were much more likely to 
have been removed from their home and to have experienced being 
physically abused.\3\
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    \3\ 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 Am. 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+ youth are overrepresented in the child welfare system 
because of a confluence of factors. Studies suggest that many LGBTQI+ 
youth face higher rates of parental physical abuse,\4\ and are more 
likely to run away from home or be kicked out, often because of 
conflict over their sexual orientation or gender identity.\5\ These 
experiences place LGBTQI+ youth at greater risk of entering foster 
care, and mean that many LGBTQI+ youth 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.\6\
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    \4\ 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://doi.org/10.2105/AJPH.2009.190009.
    \5\ Pearson, J., Thrane, L., & Wilkinson, L. (2017). 
Consequences of runaway and thrownaway 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.
    \6\ 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.
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Impact of Family and Caregiver Behavior on LGBTQI+ Youth Wellbeing

    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. For 
example, a 2021 survey \7\ found that ``LGBTQ youth who felt high 
social support from their family reported attempting suicide at less 
than half the rate of those who felt low or moderate social support. 
Moreover, the survey \8\ 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.\9\
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    \7\ The Trevor Project, 2022 National Survey on LGBTQ Youth 
Mental Health, https://www.thetrevorproject.org/survey-2022/assets/static/trevor01_2022survey_final.pdf.
    \8\ Ibid.
    \9\ Ibid.
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    Another study further quantified the negative impacts of family 
rejection of LGBTQI+ children, which can lead to greater representation 
in foster care. The study found that family behaviors, including 
excluding LGBTQI+ children from family events and activities because of 
their identity and not letting their child learn about their LGBTQI+ 
identity, that tried to change their child's LGBTQ identity increased 
the risk of depression, suicide, illegal drug use and other serious 
health risks.\10\ The study also found that family behaviors that 
support LGBTQI+ children including by standing up for their child when 
others mistreat them because of their LGBTQI+ identity had positive 
outcomes, helped promote self-esteem, overall health, and protected 
against suicidal behavior, depression and substance abuse.\11\ The 
study found that LGB 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 LGB counterparts from families that 
reported no or low levels of family rejection.\12\ Moreover, rejecting 
caregiver behavior--including refusing to use a child's chosen name and 
pronouns, ridiculing or name-calling because of the child's LGBTQI+ 
identity, or isolating behaviors such as blocking access to LGBTQI+ 
friends, events, and resources--contributes to higher rates of health 
and mental health problems.\13\

[[Page 66754]]

Conversely, the study found improved health outcomes in youth whose 
caregivers demonstrated supportive behavior towards the child's LGBTQI+ 
identity, including connecting the child to an LGBTQI+ adult role 
model.\14\
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    \10\ 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] https://lgbtqfamilyacceptance.org/family-matters/. 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. Available at https://lgbtqfamilyacceptance.org/wp-content/uploads/2021/11/FAP-Overview_Helping-Diverse-Families6.pdf and 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), Retrieved from http://pediatrics.aappublications.org/content/123/1/346.
    \11\ Ibid.
    \12\ 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), Retrieved from http://pediatrics.aappublications.org/content/123/1/346.
    \13\ 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. Available at https://lgbtqfamilyacceptance.org/wp-content/uploads/2021/11/FAP-Overview_Helping-Diverse-Families6.pdf.
    \14\ Ibid.
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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 health and well-
being needs are often unmet. LGBTQI+ youth in foster care report 
experiencing mistreatment related to their sexual orientation or gender 
identity. One study \15\ found that, ``one of the most consistent 
themes that LGBTQ youth have conveyed in focus groups and qualitative 
interviews is a tendency to be harassed, teased, and bullied by staff, 
peers, and 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.''
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    \15\ 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.
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    Children in foster care who identify as LGBTQI+ are more likely to 
be placed in congregate care settings (group homes and residential 
care), experience multiple placements, and have adverse experiences in 
their placement than non-LGBTQI+-identifying youth.\16\ 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.\17\ Moreover, older children identifying 
as LGBTQI+ in foster care report less satisfaction with their child 
welfare experience and had higher rates of negative outcomes, including 
emotional distress, greater rates of homelessness, and more 
placements.\18\
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    \16\ Wilson, Cooper, Kastanis & Nezhad (2014).
    \17\ 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.
    \18\ 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.
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    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, and feel less frequently that they can be 
themselves.\19\ 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.\20\
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    \19\ 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.
    \20\ 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.
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    In one study that looked at LGBTQI+ status-related discrimination, 
37.7 percent of children in foster care ages 12 through 21 who identify 
as LGBTQI+-reported poor treatment connected to their gender 
expression, sexual minority status, or transgender status.\21\ The 
study also showed that LGBTQI+ foster youth were more likely than their 
non-LGBTQI+ foster youth counterparts to have been hospitalized for 
emotional reasons or been homeless at some point in their life.\22\ 
Youth in foster care identifying as LGBTQI+ have also reported more 
fights in school and more mental health problems compared with their 
non-LGBTQI+ counterparts.\23\
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    \21\ 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.
    \22\ Ibid.
    \23\ 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.
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    Research has also demonstrated correlations between LGBTQI+ 
children who spent time in foster care and who later experienced 
housing instability, homelessness, and food insecurity.\24\
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    \24\ 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; 
Dworsky, A, 2013. ``The Economic Well-Being of Lesbian, Gay, and 
Bisexual Youth Transitioning Out of Foster Care,'' Mathematica 
Policy Research Reports Mathematica Policy Research, https://www.acf.hhs.gov/sites/default/files/documents/opre/opre_lgbt_brief_01_04_2013.pdf.
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    These many findings illustrate the need for child welfare personnel 
and foster parents to be educated and trained on their critical role in 
the lives of LGBTQI+ youth to avoid re-traumatization and further 
victimization of youth.\25\ Implementing strategic foster parent 
training and recruitment to meet the well-being needs of children who 
are LGBTQI+ is critical.
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    \25\ 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.
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Mental Health Needs of LGBTQI+ Youth

    Research consistently shows that when LGBTQI+ youth experience 
supportive environments and services, they experience the same positive 
mental health outcomes as other youth.\26\ 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 LGBTQI+ youth in foster care 
were 2.6 times more likely to report a past year suicide attempt than 
LGBTQI+ youth who were not in foster care, with 35 percent of LGBTQI+ 
foster youth reporting such an attempt.\27\ Reports of past year 
suicide attempt rates were even higher among LGBTQI+ foster youth of 
color (38 percent) and non-binary and transgender foster youth (45 
percent).\28\ Additionally, two child welfare agency studies showed 
that foster youth who identified as LGBTQI+ were more likely to be 
hospitalized for emotional reasons compared to non-

[[Page 66755]]

LGBTQI+ foster youth.\29\ Due to the mental health challenges 
experienced by LGBTQI+ children in foster care it is essential to place 
LGBTQI+ children in placements that can provide the support and 
specialized resources necessary to support their health and wellbeing. 
We encourage the public to submit additional data, including personal 
stories from current and former LGBTQI+ foster children and others, 
that speak to the risks to children of placements that are not safe and 
appropriate, and the advantages of placements that are.
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    \26\ 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.
    \27\ The Trevor Project, The Trevor Project Research Brief: 
LGBTQ Youth with a History of Foster Care (2021), https://www.thetrevorproject.org/wp-content/uploads/2021/07/LGBTQ-Youth-with-a-History-of-Foster-Care_-May-2021.pdf.
    \28\ The Trevor Project, The Trevor Project Research Brief: 
LGBTQ Youth with a History of Foster Care (2021), https://www.thetrevorproject.org/wp-content/uploads/2021/07/LGBTQ-Youth-with-a-History-of-Foster-Care_-May-2021.pdf.
    \29\ 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. Los Angeles, The 
Williams Institute, UCLA School of Law. Also see 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 LGBTQ2S Children 
and Youth in Foster Care (2021), The 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.
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    One area of particular concern for the mental health of LGBTQI+ 
youth in foster care may be the possible exposure to so-called 
``conversion therapy.'' Efforts to change or suppress a child's sexual 
orientation, gender identity, or gender expression 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.\30\ The American Psychological Association (APA) 
has concluded that any behavioral health or gender identity change 
effort that attempts to change an individual's gender identity or 
expression is inappropriate.\31\ 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 
gender identity change efforts because of their association with 
harm.\32\ Likewise, according to the APA sexual orientation change 
efforts are ``coercive, can be harmful, and should not be part of 
behavioral health treatment.'' \33\
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    \30\ Substance Abuse and Mental Health Services Administration, 
FAQs About Finding LGBTQI+ Inclusive Providers. https://www.samhsa.gov/behavioral-health-equity/lgbtqi/faqs.
    \31\ American Psychological Association, APA Resolution of 
Gender Identity Change Efforts, February 2021, https://www.apa.org/about/policy/resolution-gender-identity-change-efforts.pdf.
    \32\ Ibid.
    \33\ American Psychological Association, APA Resolution on 
Sexual Orientation Change Efforts, February 2021, https://www.apa.org/about/policy/resolution-sexual-orientation-change-efforts.pdf.
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    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 
appropriate, as required by statute.\34\
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    \34\ For examples, see 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 Lice-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. 
Retrieved from https://www.proquest.com/scholarly-journals/because-were-fighting-be-ourselves-voices-former/docview/2056448509/se-2.
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Current Approaches for Meeting the Needs of LGBTQI+ Children in Foster 
Care

    Current approaches for meeting the needs of LGBTQI+ children 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 Protecting the Rights and 
Providing Appropriate Services to LGBTQI+ Youth in Out-of-Home Care 
(the Report).\35\ 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 
appropriate 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.\36\ Eight states and the District of Columbia 
offer developmentally appropriate case management that helps child 
welfare workers support LGBTQI+ youth.\37\ 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.\38\
---------------------------------------------------------------------------

    \35\ 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/.
    \36\ Ibid.
    \37\ Ibid.
    \38\ Ibid.
---------------------------------------------------------------------------

    However, the Report also demonstrates that a majority of agencies 
do not have laws, regulations, or policies to make appropriate services 
and supports, or safe and appropriate placements, available to a child 
in foster care who identifies as LGBTQI+. Without such laws or 
policies, agencies may not adequately meet statutory requirements that 
guarantee LGBTQI+ youth in foster care face, like all foster youth, a 
safe and appropriate 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 child 
who identifies as LGBTQI+ who is at risk of entering or is in foster 
care.\39\ ACF is proposing this NPRM to address the extensively 
documented risk factors and adverse outcomes that children in foster 
care who identify as LGBTQI+ experience.
---------------------------------------------------------------------------

    \39\ 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. Overview of Proposal

    To support states and tribes in complying with Federal laws that 
require that all children in foster care receive safe and proper care, 
in this NPRM, ACF is proposing to require that agencies implement 
specific processes and requirements 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

[[Page 66756]]

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+.
    Under this proposed rule, agencies must ensure that a safe and 
appropriate placement is available for and provided to any child in 
foster care who identifies as LGBTQI+ and requests such a placement. 
The NPRM proposes to require agencies to ensure that the totality of 
their child welfare system includes sufficient placements for LGBTQI+ 
children that meet these standards, but would not require that every 
provider become designated as a safe and appropriate placement for 
LGBTQI+ children.\40\ To be considered as a safe and appropriate 
placement for a LGBTQI+ child means the provider with whom the agency 
places the child will establish an environment free of hostility, 
mistreatment, or abuse based on the child's LGBTQI+ status, the 
provider is 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,\41\ and the provider will facilitate the child's access to 
age-appropriate resources, services, and activities that support their 
health and well-being (671(a)(24)) if the child wishes to access those 
resources, services, and activities. The proposed rule also includes 
requirements to notify children about the availability of these 
placements, the process to request such a placement, and the process to 
report placement concerns. The proposed requirements would also 
prohibit retaliation against a child who identifies as or is perceived 
to be LGBTQI+, require specific steps before the placement of 
transgender, intersex, and gender non-conforming children in sex-
segregated child-care institutions (CCIs), require specific training 
for IV-E/IV-B agency caseworkers and supervisors ton how to 
appropriately serve LGBTQI+ youth and on how to implement the 
procedural requirements of this proposed rule, The proposed 
requirements would also require IV-E/IV-B agencies to ensure that 
agency contractors and subrecipients, as well as any placement 
providers who do not seek designation as safe and appropriate 
placements, are informed of the procedural requirements of the proposed 
rule. These proposed requirements aim to fulfill existing case review 
system requirements and other statutory requirements that require that 
all children in foster care are appropriately placed in a safe setting 
consistent with the best interest and special needs of each child. The 
details of our proposals are described further in the section by 
section of the preamble below.
---------------------------------------------------------------------------

    \40\ As described in the Section-by-Section Discussion of 
Proposed Regulatory Changes, for example, nothing in this proposed 
rule will limit, preclude, or deny any religious provider's ability 
to participate in the foster care system, as religious providers who 
have sincerely held religious beliefs that conflict with the 
policies of this proposed rule are not required to offer such 
placements for LGBTQI+ children.
    \41\ Note that only providers seeking to be designated as safe 
and appropriate providers for LGBTQI+ children would be required to 
complete specific training to provide for the needs of the child 
related to the child's self-identified sexual orientation, gender 
identity, and gender expression. Training and notification 
requirements proposed for all other contractors and providers are 
outlined in the Section-by-Section Discussion of Proposed Regulatory 
Changes.
---------------------------------------------------------------------------

    Furthermore, ACF is proposing to modify the current regulations in 
Sec.  1355.34 to monitor a state agency's compliance with the 
requirement in proposed Sec.  1355.22(a)(1) through the Child and 
Family Service Reviews (CFSR). 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 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.
    Upon enactment of a final rule, ACF proposes to monitor both state 
and tribal title IV-E/IV-B agency's plan compliance with the proposed 
requirements of Sec.  1355.22(a) through (c) using the existing partial 
review process outlined in Sec.  1355.34 because these requirements 
must be included in the state or tribe's title IV-E plan that ACF must 
review and approve. Therefore, no regulatory changes to the partial 
review process are necessary. If ACF becomes aware of a potential non-
compliance issue with Sec.  1355.22, it will initiate the partial 
review process. Evidence of non-conformity identified through the 
partial review process may result in the state/tribal title IV-E/IV-B 
agency entering into a program improvement plan. The program 
improvement plan will be developed on a case-by-case basis by ACF and 
the agency will consider the extent of noncompliance. If the title IV-
E/IV-B agency remains out of compliance, the agency will be subject to 
a penalty related to the extent of the noncompliance.
Equity Impact
    This NPRM is consistent with the Administration's priority of 
advancing equity for LGBTQI+ individuals as well as those historically 
underserved and adversely affected by persistent poverty and inequality 
(see Advancing Racial Equity and Support for Underserved Communities 
Through the Federal Government (Executive Order (E.O.) 13985), issued 
Jan. 20, 2021; Advancing Equality for Lesbian, Gay, Bisexual, 
Transgender, Queer, and Intersex Individuals (E.O. 14075), issued June 
15, 2022). E.O. 14075 laid out objectives to reduce disparities that 
LGBTQI+ children face, including in foster care. LGBTQI+ children often 
have greater service needs, are at an increased risk for poor outcomes, 
are more likely to be placed in group settings and experience more 
placements, including those that may harm their well-being by 
undermining or suppressing their identity. By requiring agencies to 
ensure that safe and appropriate placements are available for and 
provided to LGBTQI+ children, we will work with agencies to ensure 
compliance with statutory requirements for all children in foster care 
to have a safe and appropriate placement that supports their health and 
well-being.

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

Required Protections for LGBTQI+ Children in Foster Care To Receive 
Safe and Appropriate Placements

Section 1355.22
    Title IV-E establishes case plan requirements in sections 
471(a)(16), 475(1) and 475(5)(A) and (D) of the Act and 45 CFR 
1356.21(g), assuring that a child in foster care receives safe and 
proper care consistent with the best interest and special needs of the 
child, and that the case plan provide a discussion of the safety and 
appropriateness of the child's placement. To ensure that LGBTQI+ youth 
receive safe and proper care consistent with their best interests and 
special needs, in paragraph (a), ACF proposes procedural requirements 
that the title IV-E/IV-B agency must meet for each child in foster care 
who self-identifies as LGBTQI+ or who has entered the child welfare 
system, in whole or in part, because of familial conflict related to 
their LGBTQI+ identity.
    ACF proposes to require in paragraph (a)(1) that the title IV-E/IV-
B agency ensure a safe and appropriate placement is available for, and 
provided to, any

[[Page 66757]]

child in foster care who identifies as LGBTQI+.
Requirements of a Safe and Appropriate Placement
    For a placement to be considered safe and appropriate for a child 
who identifies as LGBTQI+, we propose to require that the title IV-E/
IV-B agency make available and ensure that a child is placed with a 
foster care provider (e.g., foster family home, child care institution) 
who: (1) will establish an environment free of hostility, mistreatment, 
or abuse based on the child's LGBTQI+ status, (2) is 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, and (3) will 
facilitate the child's access to age-appropriate resources, services, 
and activities that support their health and well-being.
1. A Placement That Is Free From Hostility, Mistreatment, or Abuse
    Title IV-E provides that each child in foster care must receive a 
placement that is safe. In paragraph (a)(1)(i) we propose that the 
agency must place the child with a placement provider (e.g., foster 
family home, child care institution) who will establish an environment 
free from hostility, mistreatment, or abuse based on the child's 
LGBTQI+ identity and status. In the background section of this proposed 
rule, we explain the significant body of evidence which demonstrates 
that when LGBTQI+ children face hostility, stigma, or rejection related 
to their sexual orientation or gender identity they are put at 
significant increased risk of adverse mental health outcomes and 
attempt suicide at higher rates.\42\ For example, under the proposed 
requirement, a provider who used derogatory language or slurs about a 
child's LGBTQI+ identity would not be a safe and appropriate placement. 
Similarly, a provider who attempted to undermine, suppress, or change 
the sexual orientation, gender identity, or gender expression of a 
child, including through the use of so-called ``conversion therapy'' 
would not be a safe and appropriate placement As explained by the 
Substance Abuse and Mental Health Services Administration (SAMHSA), 
efforts that attempt to suppress or change a child's sexual orientation 
or gender identity ``are inappropriate, ineffective, and harmful 
practices that should not be provided to children and adolescents.'' 
\43\ In meeting the proposed requirement, the agency must not place 
LGBTQI+ identifying children with a provider who unreasonably limits or 
denies a child's ability to express their sexual orientation, gender 
identity, or gender expression. For example, to be considered a safe 
and appropriate placement, a provider is 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.
---------------------------------------------------------------------------

    \42\ See 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.
    \43\ 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.)
---------------------------------------------------------------------------

2. A Placement With a Provider Trained To Provide for the Needs of an 
LGBTQI+ Child
    For a placement to be considered safe and appropriate for children 
who identify as LGBTQI+, we propose in paragraph (a)(1)(ii) that the 
agency must place the child with a placement provider who is 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. This includes 
foster family home providers and staff who work in child-care 
institutions (CCIs) as defined in 45 CFR 1355.20.\44\
---------------------------------------------------------------------------

    \44\ As noted throughout this document, the proposed rule would 
not require that all providers seek designation as a safe and 
appropriate placement for LGBTQI+ children, but instead requires the 
state or tribal title IV-E/IV-B agency to ensure that the totality 
of its child welfare system provides safe and appropriate placements 
for all LGBTQI+ children.
---------------------------------------------------------------------------

    Title IV-E requires the agency to certify that foster parents are 
``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'' 
(471(a)(24)). These requirements are important for protecting the 
safety and mental health of the child. As explained in studies cited 
above and SAMHSA's 2023 report Moving Beyond Change Efforts: Evidence 
and Action to Support and Affirm LGBTQI+ Youth, research demonstrates 
that when a LGBTQI+ child has their identity respected and supported by 
the caregivers in their life, their risks of attempted suicide decrease 
dramatically.
    Some states already provide training of practices to serve LGBTQI+ 
children, as noted on the Child Welfare Information Gateway's State 
Statutes Search.\45\ Many agencies have not yet incorporated provider 
training addressing the needs of a child who identifies as LGBTQI+ into 
their curriculum. We anticipate that all title IVE/IVB agencies will 
need to develop or revise their training curriculum to meet the 
proposed provider training requirements in this NPRM.
---------------------------------------------------------------------------

    \45\ Child Welfare Information Gateway, State Statute Search. 
https://www.childwelfare.gov/topics/systemwide/laws-policies/state/.
---------------------------------------------------------------------------

    We are not proposing a specific training curriculum that agencies 
would need to use to train foster care providers (i.e., foster family 
homes and child care institutions). However, agencies would need to 
ensure that the training curriculum adequately prepares foster family 
home and child-care institution providers to meet the best interests 
and special needs of an LGBTQI+ child. For a training to adequately 
prepare a provider to meet the best interests and special needs of an 
LGBTQI+ child, it would need to be a training that reflects evidence, 
studies, and research about the impacts of rejection, discrimination, 
and stigma on the safety and wellbeing of LGBTQI+ youth, and provides 
information for providers about practices that promote the safety and 
wellbeing of LGBTQI+ youth. HHS seeks comments on how ACF can ensure 
these training curriculums for foster care providers are of high 
quality.
    We encourage agencies to consider using or adapting foster care 
provider training already established by entities with specialized 
knowledge on this topic, such as the National SOGIE Center, a 
collaborative led by Innovations Institute at the University of 
Connecticut School of Social Work and funded by the ACF Children's 
Bureau to improve permanency, stability, and well-being for this 
population.\46\ The Child Welfare Information Gateway has also issued 
publications providing guidance on how to create a welcoming and safe 
placement for children in foster care who identify as LGBTQI+,

[[Page 66758]]

including Supporting LGBTQ+ Youth: A Guide for Foster Parents.\47\
---------------------------------------------------------------------------

    \46\ See National SOGIE Center, Trainings, https://sogiecenter.org/offerings/training/. National SOGIE Center trainings 
include trainings for agency facilitators, such as All Children--All 
Families Training of Facilitators. Also see the San Francisco State 
University Family Acceptance Project, https://familyproject.sfsu.edu/.
    \47\ Child Welfare Information Gateway (2021). Supporting LGBTQ+ 
youth: A guide for foster parents. U.S. Department of Health and 
Human Services, Administration for Children and Families, Children's 
Bureau. https://www.childwelfare.gov/pubPDFs/LGBTQyouth.pdf.
---------------------------------------------------------------------------

    As explained in studies cited above and SAMHSA's 2023 Moving Beyond 
Change Efforts: Evidence and Action to Support And Affirm LGBTQI+ 
Youth, research demonstrates that even just one supportive adult can 
positively impact the mental health of LGBTQI+ youth. This support can 
reduce negative mental health outcomes and risk of suicide. The 
placement provider can and should be a supportive adult for the 
children in their care. Moreover, the SAMHSA report also found that 
``family or caregiver, peer, school, and community support for youth of 
diverse sexual orientation and/or gender identity promotes better 
mental health and fewer negative outcomes and can lead to positive 
development and emotional resilience.'' \48\ These findings demonstrate 
how a supportive placement can promote positive outcomes, while also 
illustrating how a lack of support on the part of an adult caregiver 
does not.
3. A Placement That Will Facilitate Access to Age-Appropriate 
Resources, Services, and Activities
    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 
(422(b), 471(a)(16), 475(1)(B), and 475(5)). To ensure that children 
have their special needs met, we propose in paragraph (a)(1)(ii)(B) 
that the agency must place the LGBTQI+ child with a placement provider 
will facilitate the child's access to age-appropriate resources, 
services, and activities that support the child's health and wellbeing, 
which may include services and supports related to their sexual 
orientation or gender identity. This proposal will ensure specifically 
that a child who identifies as LGBTQI+ will have access to a range of 
services and activities that addresses their specific health and 
wellbeing needs. These may include, but are not limited to, 
facilitating access to behavioral health supports respectful of their 
LGBTQI+ identity, interacting with LGBTQI+ mentors and peers, joining 
and participating in affinity groups, and connecting the child to 
available LGBTQI+ supportive resources and events, either in person or 
virtually depending on local availability. A significant body of 
research demonstrates that these services are essential to support the 
child's safe and appropriate placement, and to support the emotional, 
developmental, and behavioral health needs of LGBTQI+ children in 
foster care.\49\ As such, a safe and appropriate provider for an 
LGBTQI+ child must not discourage or prevent the child who identifies 
as LGTBQI+ from receiving age-appropriate services and supports that 
support their health and well-being related to the child's self-
identified sexual orientation, gender identity, or gender expression. 
HHS understands that some IV-E/IV-B agencies will have more limited 
access to age-appropriate resources, services, and activities due to 
fewer service providers able to provide LGBTQI+ supportive services. 
HHS seeks comments on how ACF can best support agencies, including 
those located in rural and other resource limited areas, in fulfilling 
this requirement.
---------------------------------------------------------------------------

    \49\ See 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.
---------------------------------------------------------------------------

Prohibition of Disclosure of Sensitive Information
    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). Information about 
a foster child's LGBTQI+ identity, 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.
Notification and Requests for Safe and Appropriate Placements
    In paragraph (a)(2) ACF proposes to require that the title IV-E/IV-
B agency establish a process by which a child identifying as LGBTQI+ 
may request a safe and appropriate placement as described in paragraph 
(a)(1). This will help the agency ensure that plan requirements 
regarding placements are fulfilled, consistent with the child's best 
interest and special needs. In paragraph (a)(2)(i), we propose that the 
agency's process include a notice to specified children of the 
availability of these placements and how to request them. Specifically, 
at a minimum, the agency must provide notice to a child aged 14 and 
over, and a child under age 14 if the child was removed, either in 
whole or in part, as a result of familial conflict about their actual 
or perceived LGBTQI+ identity, or if the child's LGBTQI+ identity is 
otherwise known to the agency. This proposed requirement is imposed on 
the state or tribal agency and is not a requirement of providers. As 
discussed further on in the proposed rule, this proposal gives states 
and tribes flexibility to determine how to work with providers to 
disseminate such information.
    We are proposing the agency provide notification to all children 
aged 14 and older because the existing case plan requirement in section 
475(1)(B) of the Act already requires that each child's case plan 
``shall be developed in consultation with the child'' for children 14 
and older. Nothing in this proposed rule would preclude agencies from 
notifying children earlier of the availability of safe and appropriate 
placements.
    In paragraph (a)(2)(ii), ACF proposes that the notice must be 
provided in an age-appropriate manner, both verbally and in writing. We 
propose these two communication forms to provide the child with 
different opportunities and ways to understand that placements 
described in paragraph (a)(1) are available and how they can be 
requested. For example, having a verbal conversation provides a ready 
opportunity for a child to ask questions to their caseworker as needed. 
In contrast, written information allows the agency to provide children 
with uniform, consistent information that a child or youth can review 
at their convenience. The agency process for a child to request a 
placement defined in proposed paragraph (a)(1) may vary by state, 
tribe, and/or locality. Examples include a process for the child to: 
call or text the agency caseworker/other agency personnel, inform 
agency

[[Page 66759]]

personnel in person, or email the agency caseworker/other agency 
personnel. Other options may include establishing private, secure 
accounts on a social media platform or smart phone application that 
could be used by children in foster care and accessed by designated 
agency caseworkers or agency personnel. In paragraph (a)(2)(iii), we 
propose that the notice must inform the child of how they may request a 
safe and appropriate placement.
    Once the child's LGBTQI+ identity is known to the title IV-E/IV-B 
agency, it is the responsibility of the agency to provide the required 
information to the child, while protecting the privacy and 
confidentiality of the child. Regardless of the method used, agencies 
must ensure the privacy and confidentiality of any information shared 
by a child who is seeking a safe and appropriate placement.
Reporting and Responding to Concerns About Placements That Are Not Safe 
or Appropriate
    In paragraph (a)(3), ACF proposes to require the title IV-E/IV-B 
agency to implement a process for children identifying as LGBTQI+ to 
report concerns about any placements that do not meet the requirements 
of paragraph (a)(1). We are proposing this requirement to ensure that 
agencies meet case plan requirements to assure that the child receives 
safe and appropriate care.
    In paragraph (a)(3)(i), we propose that the agency provide a notice 
of the availability of this process to all children who meet the 
requirements of paragraphs (a)(2)(i)(A) and (B). Specifically, we 
propose that the agency provide the notice to all children in foster 
care age 14 and over, and a child under age 14 if the child was 
removed, either in whole or in part, as a result of familial conflict 
about their actual or perceived LGBTQI+ identity, or if the child's 
LGBTQI+ identity is otherwise known to the agency. Once the child's 
LGBTQI+ identity is known to the title IV-E/IV-B agency, it is the 
responsibility of the agency to provide the information about the 
agency's process to the child.
    The proposed agency process for children to report concerns about 
their placement may vary by state, tribe, and/or locality. Examples 
include a process for the child to: call or text the agency caseworker/
other agency personnel, inform agency personnel in person, call a 
hotline, or email the agency caseworker/other agency personnel. Other 
options may include establishing private, secure accounts on a social 
media platform or smart phone application that could be used by 
children and accessed by designated agency caseworkers or agency 
personnel. Regardless of the method used, agencies must ensure the 
privacy and confidentiality of any information shared by a child who is 
seeking a safe and appropriate placement. In paragraph (a)(3)(ii), ACF 
proposes that the agency must provide notice to the child explaining 
how to report concerns about placements to the child in an age-
appropriate manner, both verbally and in writing. We propose these two 
communication forms to provide the child with different opportunities 
and ways to understand the agency's process for the child to make a 
report about their placement concerns not meeting paragraph (a)(1). For 
example, having a verbal conversation provides a ready opportunity for 
a child to ask questions to their caseworker as needed. In contrast, 
written information allows the agency to provide children with uniform, 
consistent information that a child or youth can review at their 
convenience.
    We propose in paragraph (a)(3)(iii) that the agency respond 
promptly to the child's reported concerns. The title IV-E/IV-B agency 
must notify all children who meet the requirements of paragraph 
(a)(2)(i) of the availability of this process in an age-appropriate 
manner, both verbally and in writing and in a manner consistent with 
the agency's timeframes for investigating child abuse and neglect 
reports.
    ACF has reviewed state agencies policies and practices about 
investigating child abuse and neglect in order to provide context for 
this proposal and identified existing state agency requirements for 
handling such reports and responding to reports with different levels 
of urgency.\50\ We propose that the agency determine the timeframe for 
responding promptly to a child's report by requiring the agency to 
align this proposed process with existing timelines for agency child 
abuse and neglect reporting and investigating procedures. All states 
are required to initiate a child abuse and neglect investigation in a 
timely manner, which is generally defined as within 72 hours. However, 
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. Further, in many agencies, the investigation 
must begin within 12 hours of a report if serious harm is indicated. In 
certain cases, we anticipate that a report from a LGBTQI+ youth that 
they feel their placement is not safe or appropriate should merit a 
response of great urgency from the agency. For example, given the 
extensive evidence that LGBTQI+ youth who face bullying, 
discrimination, or harassment related to their sexual orientation or 
gender identity are at significantly increased risk of violence or 
self-harm, we anticipate that agencies should respond with urgency when 
a LGBTQI+ child raises concerns that a placement that is not safe and 
appropriate.
---------------------------------------------------------------------------

    \50\ Child Welfare Information Gateway, State Statute Search. 
https://www.childwelfare.gov/topics/systemwide/laws-policies/state/.
---------------------------------------------------------------------------

    ACF solicits public comment on whether and how best to define 
``promptly'' as applied to this provision, understanding that the 
circumstances of the child's report may dictate the timeframes and 
immediacy of the action the IV-E/IV-B agency must take in responding to 
the report.
Protection From Retaliation
    In paragraph (a)(4), ACF proposes to require that the title IV-E/
IV-B agency have a procedure to ensure that no child in foster care 
experiences retaliation when the child has disclosed their LGBTQI+ 
identity, is otherwise reported or perceived to have an LGBTQI+ 
identity, has requested a safe and appropriate placement, or has 
reported concerns that the placement is not meeting the requirements of 
paragraph (a)(1). Retaliation in this context can be committed by title 
IV-E/IV-B agency personnel, the agency's contractors, or foster care 
providers. This proposed requirement will assist agencies in ensuring 
that a child in foster care receives safe and appropriate care 
consistent with the best interest and special needs of the child. The 
term retaliation means imposing negative consequences on the child 
because of the child's disclosure of their LGBTQI+ identity, perceived 
LGBTQI+ identity, request, or report. This may include such things as 
unwarranted placement changes (including unwarranted placement in 
congregate care rather than in family-like settings), restriction of 
access to LGBTQI+ peers or age-appropriate materials, required 
participation in efforts to degrade, disparage or change the child's 
sexual orientation or gender identity, disclosing the child's LGBTQI+ 
identity in ways that cause harm or risk the privacy of the child, or 
other activities that stigmatize a child's LGBTQI+ identity.
    ACF is proposing this requirement because we are concerned about 
the

[[Page 66760]]

potential for a child who identifies or is perceived as LGBTQI+ to be 
subjected to negative consequences in response to disclosure of their 
actual or perceived LGBTQI+ identity.
    The agency must ensure that children who disclose their identity, 
are perceived to have an LGBTQI+ identity, report a problem with a 
placement, or request a safe and appropriate placement are not 
subjected to any attempt to undermine, suppress, or change their sexual 
orientation, gender identity, or gender expression, efforts sometimes 
referred to as so-called ``conversion therapy.'' This includes ensuring 
the privacy and confidentiality of any information shared during these 
processes. As described in the background section of this proposed 
rule, these practices put LGBTQI+ youth at significant risk and are 
never safe or appropriate.
Access to Supportive and Age-Appropriate Services
    In paragraph (a)(5), ACF proposes to require that the title IV-E/
IV-B agency ensure that children who identify as LGBTQI+ have access to 
age-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. 
Clinically appropriate services means that they are based on current 
evidence and generally accepted medical standards of care.
    Studies show that LGBTQI+ children have higher rates of suicidality 
than their heterosexual peers.\51\ Two recent child welfare agency 
studies showed that LGBTQI+ youth in foster care were more likely to be 
hospitalized for emotional reasons compared to non-LGBTQI+ youth.\52\ 
Being in foster care also appears to be an independent risk factor for 
LGBTQI+ youth: a 2020 survey found that ``LGBTQ youth who reported 
having been in foster care had three times greater odds of reporting a 
past-year suicide attempt compared to those who had not.'' \53\
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    \51\ The Trevor Project (2021), Facts About LGBTQ Youth Suicide. 
https://www.thetrevorproject.org/resources/article/facts-about-lgbtq-youth-suicide/.
    \52\ 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. 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.
    1 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.
    \53\ The Trevor Project (2021) The Trevor Project Research 
Brief: LGBTQ Youth with a History of Foster Care https://www.thetrevorproject.org/wp-content/uploads/2021/07/LGBTQ-Youth-with-a-History-of-Foster-Care_-May-2021.pdf.
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    The proposal to ensure that children who identify as LGBTQI+ have 
access to services that are tailored to their specific needs, including 
needs related to their LGBTQI+ identity is supported by the existing 
case plan requirements as defined in section 475(1)(B) of the Act, 
specifically, the section requiring that each child have a plan ``for 
assuring that . . . services are provided to the parents, child, and 
foster parents in order to . . . 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.'' The 
proposal also provides guidance to states and tribes regarding how ACF 
interprets, for LGBTQI+ children, the IV-E state plan requirement that 
agencies develop and implement standards to ensure that children in 
foster care placements are provided quality services that protect their 
safety and health. Section 471(a)(22).
    ACF understands that some states also have few services providers 
able to provide LGBTQI+ supportive services. ACF seeks comments on how 
ACF can best support agencies, including those located in rural and 
other resource limited areas, in fulfilling this requirement.
Placement Requirements for Transgender, Gender Non-Conforming, and 
Intersex Children
    The title IV-E statute provides that each child must have a case 
plan designed to achieve placements in the most appropriate setting 
available consistent with the best interests and special needs of the 
child (422(b), 471(a)(16), 475(1)(B), and 475(5)). To meet these 
statutory requirements, in paragraph (b), ACF proposes to require when 
the title IV-E/IV-B agency is placing a transgender, gender non-
conforming, and intersex child with a safe and appropriate provider 
that is a sex segregated child-care institution, that they must make 
placements consistent with the child's self-identified gender identity. 
Evidence demonstrates that when transgender, intersex, or gender non-
conforming youth have their gender identity respected it reduces the 
risk of adverse mental health outcomes and attempted suicide, and 
provides benefits such as enhancing a child's sense of safety and 
overall well-being, supporting their sense of self and positively 
impacting their mental health. Conversely, when transgender \54\ gender 
non-confirming youth are forced to use sex-segregated spaces that do 
not align with their gender identity it can exacerbate the 
psychological distress related to gender dysphoria.\55\ The IV-E/IV-B 
agency must consult with the transgender, gender non-conforming, or 
intersex child to provide an opportunity to voice any concerns related 
to placement when the agency is considering a placement in such a 
facility. when the agency is considering a placement in such a 
facility.
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    \54\ See 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.
    \55\ Ibid.
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Training and Informational Requirements
    In paragraph (c), ACF proposes to require that title IV-E/IV-B 
agencies ensure that their employees who have responsibility for 
placing children in foster care, making foster care placement 
decisions, or providing services are trained to implement the 
procedural requirements of this proposed rule and to appropriately 
serve LGBTQI+ children. Such training should adequately prepare 
caseworkers and supervisors with the appropriate knowledge and skills 
to address the needs of foster children on their caseload related to 
sexual orientation, gender identity, and expression. The training 
should also ensure that all agency caseworkers and supervisors are 
prepared to implement and fulfill the requirements of this proposed 
rule. For a training to adequately prepare agency staff to meet the 
best interests and special needs of an LGBTQI+ child, it would need to 
be a training that reflects evidence, studies, and research about the 
impacts of rejection, discrimination, and stigma on the safety and 
wellbeing of LGBTQI+ youth, and provides information for agency staff 
about practices that promote the safety and wellbeing of LGBTQI+ youth. 
This proposed requirement is necessary to ensure that IV-E/IV-B 
agencies can properly implement the case plan and case review 
requirements of the Act for LGBTQI+ foster children.
    In paragraph (c), ACF also proposes to require that title IV-E/IV-B 
agencies ensure that all agency contractors and subrecipients who have 
responsibility

[[Page 66761]]

for placing children in foster care, making placement decisions, or 
providing services are informed of the procedural requirements 
necessary to comply with this proposed rule. Similarly, we propose to 
require that agencies ensure that all placement providers who have not 
chosen to seek designation as safe and appropriate placement providers 
for LGBTQI+ foster children are also informed of the procedural 
requirements necessary to comply with this proposed rule. As part of 
this requirement, agencies would be required to ensure that 
contractors, subrecipients, and placement providers are all informed of 
the required non-retaliation provisions outlined in paragraph (a)(4).
Ensuring Compliance Through the Child and Family Services Review
    ACF proposes to revise the Child and Family Services Review (CFSR) 
regulations to make clear that the CFSR process will assess agencies on 
their compliance with the requirements of these proposed regulations. 
Specifically, we propose to revise Sec.  1355.34(c)(2)(i) to add 
``including placements described in Sec.  1355.22(a)(1)'' to the case 
review system requirement for provisions to place the child in an 
appropriate placement that meets their needs. We also propose to add at 
the end of Sec.  1355.34(c)(2)(i) within the parenthetical ``Sec.  
1355.22(a)(1))''. Under the current CFSR regulations, the Children's 
Bureau reviews how title IV-E agencies ensure the safety and 
appropriateness of foster care placements. This proposed amendment will 
ensure that the requirements proposed to be added to Sec.  
1355.22(a)(1) are included in the CFSRs, and specifically examined 
under the case review systemic factor outlined in Sec.  
1355.34(c)(2)(i).
    In implementing the requirements proposed under this rule, ACF 
anticipates that agencies will likely need to produce new 
administrative records to monitor and track requests for safe and 
appropriate placements and adjudication of those requests. Such 
administrative records, including at the case file level, may be 
reviewed through the CFSR process. ACF invites public comment on what 
further guidance states may need on producing such administrative 
records, while protecting the privacy and confidentiality of LGBTQI+ 
youth.
Severability
    For the reasons described above, ACF believes that its authority to 
implement each of the provisions in the proposed regulation is well-
supported in law and practice and should be upheld in any legal 
challenge. ACF also believes that its exercise of its authority 
reflects sound policy. However, in the event that any portion of the 
proposed rule is declared invalid, ACF intends that the other 
provisions be severable.
Religious Liberty and Other Freedoms
    ACF appreciates the vital role that religious providers play in 
providing care and services to children in the child welfare system. 
ACF values the child welfare services that faith-based organizations 
provide, consistent with HHS-wide regulations governing social services 
ensuring that religious 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). ACF 
takes seriously its obligations to comply with the Constitution and 
Federal laws that support and protect religious exercise and freedom of 
conscience, 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''). ACF 
will continue to operate the title IV-E and IV-B programs in compliance 
with these legal requirements. ACF remains fully committed to 
thoroughly considering any organization's assertion that any 
obligations imposed upon them that are necessitated by this proposed 
rule as finalized conflicts with their rights under those laws.
    If a title IV-E/IV-B provider alleges that any obligation that this 
proposed rule as finalized requires a state or tribe to impose 
substantially burdens the provider's religious exercise, ACF will apply 
the test set out by RFRA to determine whether an exemption is required. 
Under RFRA, when Federal action substantially burdens an individual or 
entity's exercise of religion, the Federal government must afford that 
individual or entity an exemption to the rule unless the government can 
demonstrate that applying the burden in that particular instance 
furthers a compelling governmental interest and is the least 
restrictive means of doing so. See 42 U.S.C. 2000bb-1(b). Accordingly, 
under RFRA, we first assess whether the particular application of the 
rule substantially burdens the provider's exercise of religion. If so, 
we assess whether applying the requirement furthers a compelling 
interest and whether there are less restrictive alternatives available. 
Thus, even if the rule substantially burdens a religious practice, an 
exemption would not be required if the burden is necessary to the 
advancement of a compelling government interest through the least 
restrictive means possible. We will apply RFRA in accordance with the 
statutory text and applicable case law.
    When drafting this proposed rule, ACF has taken these RFRA 
principles into account, and has endeavored to write each provision to 
provide states and tribes with the flexibility to implement the 
measures without imposing any substantial burdens on providers' 
religious exercise that we can reasonably anticipate. Most importantly, 
nearly all of the requirements in this proposed rule would be imposed 
directly on state and tribal IV-E/IV-B agencies, as opposed to on any 
private foster care agency, foster parent, kinship caregiver or other 
provider. The only requirement that would be imposed on private 
providers by the proposed rule is the requirement to be informed of the 
procedural requirements to comply with the proposed rule (including the 
required non-retaliation provisions outlined in paragraph (a)(4)). All 
other requirements would be responsibilities of the state and tribal 
IV-E/IV-B agencies, and ACF believes that these responsibilities have 
been drafted in a manner that the IV-E/IV-B agencies can satisfy 
without imposing any substantial burden on religious providers that is 
reasonably foreseeable.
    As the Supreme Court has recently made clear, the First Amendment 
protects faith-based entities that provide foster care services. See 
Fulton v. City of Philadelphia, 593 U.S. __(2021). Consistent with this 
protection, the proposed rule, if adopted, would not require any faith-
based provider to seek designation as a safe and appropriate provider 
for LGBTQI+ children as described in this proposed rule if the provider 
had sincerely held religious objections to doing so. When drafting the 
text, ACF was cognizant that a foster care requirement that precludes a 
child welfare provider from participating in the program while adhering 
to its religious beliefs might substantially burden religious exercise. 
Rather than placing requirements on child welfare providers, this rule 
as proposed would require agencies to ensure that their child welfare 
networks as a whole include sufficient numbers of providers that are 
willing to supply safe and appropriate placements for LGBTQI+ children 
so that all children who request such a placement will receive an 
appropriate one. To the extent that current networks are insufficient, 
the Department believes that IV/B/IV-E

[[Page 66762]]

agencies will be able to meet this requirement through outreach, 
training and other supply-building activities to build their provider 
networks, and can do so without imposing substantial burdens on 
religious exercise of providers. 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 
adversely disadvantages any faith-based organizations that express 
religious objections to providing safe and appropriate placements for 
LGBTQI+ children.
    While this proposed rule would require title IV-E/IV-B agencies to 
establish processes for children to receive notification concerning the 
availability of safe and appropriate placements, how to request them 
and the means of reporting any concerns about such placements, ACF 
expects agencies would adopt these notice requirements without 
substantially burdening the religious exercise of any child welfare 
providers that expressed religious objections to disseminating the 
notices in any reasonably foreseeable way. For example, under the 
proposed rule, a title IV-E/IV-B agency may provide the notices 
directly through agency staff. Alternatively, state and tribal agencies 
may require the providers in their child welfare network to disseminate 
the notices as a general matter while exempting any entities that 
express religious objections to doing so and utilizing agency staff in 
those limited instances. In addition, HHS is not aware of any instances 
in which a faith-based organization has requested a religious exemption 
from an HHS notice requirement that is generally applicable to social 
service providers notwithstanding the fact that the notice informs 
beneficiaries of alternative providers.
    This proposed rule similarly would enable title IV-E/IV-B agencies 
to retain discretion when determining how to ensure that contracted 
caseworkers and supervisors who are responsible for placing children in 
foster care, making placement decisions or providing services, as well 
as placement providers who choose not to seek designation as safe and 
appropriate placements are informed of the requirements of this rule. 
To be clear, this proposed regulatory requirement only requires that 
contractors/subrecipients and those placement providers who are not 
seeking designation as safe and appropriate placements for LGBTQI+ 
children are informed of the procedural requirements, including the 
non-retaliation provision.
    This proposed rule enables title IV-E/IV-B agencies to retain 
flexibility to determine how title IV-E/IV-B agencies will ensure that 
LGBTQI+ children will upon request be transferred from any entity that 
will not provide a safe and appropriate placement as described by the 
finalized rule to one that will. ACF expects agencies to adopt transfer 
processes that minimize the extent of any obligations on faith-based 
providers that need to transfer children as a result of this proposed 
rule as finalized. ACF notes that it has no historical basis to 
anticipate religious objections to cooperating with such transfers, as 
HHS has not received any religious objections in other instances in 
which HHS required faith-based grantees to refer third parties impacted 
by religious objections to alternative providers.
    As we have explained, we have crafted this proposed rule to 
minimize the likelihood that it will impose substantial burdens on 
religious exercise in violation of the Constitution or RFRA. 
Nevertheless, should any child welfare service provider incur any 
unforeseen religious objections to compliance with an obligation that 
is necessitated by this proposed rule as finalized (as opposed to any 
discretionary measure imposed by a state or tribe) ACF will consider 
requests for accommodation on a case-by-case basis in accordance with 
the Constitution and Federal statutes. ACF recognizes that RFRA 
requires a fact-specific case-by-case analysis of whether any specific 
obligation necessitated by this proposed rule imposes a substantial 
burden on religious exercise, and, if so, whether that obligation is in 
the particular case the least restrictive means of furthering a 
compelling government interest. See Gonzales v. Centro, 546 U.S. 418 
(2006). This case-by-case analysis will allow ACF to consider whether 
any substantial burden imposed on the provider's exercise of religion 
is in furtherance of a compelling governmental interest, and is the 
least restrictive means of advancing that interest. This will involve 
considering any harm an exemption could have on third parties involved 
in the child welfare program. See Cutter v. Wilkinson, 544 U.S. 709, 
720 (2005). This process provides an opportunity for service providers 
to raise with ACF any concerns regarding obligations necessitated by 
this proposed rule as finalized, which would enable ACF to determine 
whether an exemption or modification of the application of the 
provision at issue is appropriate under the Federal religious freedom 
law at issue.
    As to the process for filing any requests for religious 
accommodation, state and tribal child welfare agencies must continue to 
notify sub-awardees of their religious freedom rights. As required 
under 45 CFR 87.3(a) and (k), state and tribal child welfare agencies 
must continue to 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. Similarly, notices of award or 
contract must include language that is substantially similar to that in 
section (a) of appendix B to part 87. In relevant part, these 
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, including the Free Speech and Free Exercise Clauses of the 
First Amendment of the U.S. Constitution, RFRA, or any related or 
similar Federal laws or regulations; and that religious accommodations 
may also be sought under many of these religious freedom, 
nondiscrimination, and conscience protection laws.
    A provider requesting any religious accommodation would submit the 
request to their state's or tribe's 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 Office of the General 
Counsel.
Kinship Caregivers
    A significant body of evidence demonstrates that when children in 
the foster care system are placed with kinship caregivers that they 
have better outcomes.\56\ We note that 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). HHS invites 
public comment on how agencies can best comply with the requirements of 
this proposed rule and prioritize placements with kinship caregivers. 
In particular, HHS invites public comment on what resources

[[Page 66763]]

agencies may need from HHS to support kinship caregivers in caring for 
an LGBTQI+ child.
---------------------------------------------------------------------------

    \56\ 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/.
---------------------------------------------------------------------------

Recruitment of Safe and Appropriate Providers
    In order to comply with the requirements in this proposed rule, 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 to ensure that the totality of their child welfare system 
includes enough safe and appropriate placements to meet the needs of 
LGBTQI+ children in care. To support states and tribes in meeting these 
recruitment needs, ACF allows sharing costs between the Federal 
Government and state and tribal governments, providing Federal title 
IV-E funding for 50 to 75 percent of the administrative, recruitment 
and training costs of this NPRM. HHS invites public comment on how best 
we can support states and tribes in recruiting providers to provide 
safe and appropriate placements.

V. Regulatory Process Matters

Regulatory Planning and Review 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 
proposed 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 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.\57\ As thoroughly documented by 
SAMHSA, ``[s]upportive family, caregivers, community, school, child 
welfare, and healthcare environments have been shown to positively 
impact both the short- and long-term health and well-being of LGBTQI+ 
youth.'' \58\ This proposed rule promotes a supportive environment for 
children in foster care who self-identify as LGBTQI+.
---------------------------------------------------------------------------

    \57\ 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; 
Amy Dworsky, 2013. ``The Economic Well-Being of Lesbian, Gay, and 
Bisexual Youth Transitioning Out of Foster Care,'' Mathematica 
Policy Research Reports b2f4fb67aab149f9a5e75f558, Mathematica 
Policy Research; https://www.acf.hhs.gov/sites/default/files/documents/opre/opre_lgbt_brief_01_04_2013.pdf.
    \58\ 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.
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    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 an eventual 
final rule. To inform the final rule, ACF intends to seek comments on 
whether state and tribal agencies are likely to incur additional 
substantial costs.
Alternatives Considered
    As an alternative to this NPRM, ACF considered providing sub-
regulatory guidance requiring agencies to implement the provisions of 
the NPRM for children who identify as 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 appropriate 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.\59\
---------------------------------------------------------------------------

    \59\ 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.
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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 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 proposed rule will not 
result in a significant impact on a substantial number of small 
entities. Therefore, an initial regulatory flexibility analysis is not 
required for this document.

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

[[Page 66764]]

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 $177 million. This proposed 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.

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 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 
this proposed rule will not have a negative 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. ACF conducted a regulatory impact analysis (RIA) to estimate 
costs, transfers, and benefits of provisions in the proposed rule. The 
cost of implementing changes made by this proposed rule would vary 
depending on a state's specific situation and implementation choices. 
This 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 anticipate that this proposed rule will have a 
substantial direct impact on the cost that title IV-E agencies will 
incur to implement administrative procedures and recruit and train 
their workforce and providers. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this action has 
sufficient federalism implications that warrants the preparation of a 
federalism summary impact statement.

Federalism Summary Impact Statement

    The Social Security Act requires agencies to provide children in 
foster care with safe and appropriate placements and services (42 
U.S.C. 675(1)(b)) and ensure that prospective foster parents are 
prepared adequately with the appropriate knowledge and skills to 
provide for the needs of the child (42 U.S.C. 671(a)(24)). ACF believes 
this proposed regulation is necessary to ensure children in foster care 
who identify as LGBTQI+ are provided appropriate placements and access 
to support services that address the well documented disparities that 
LGBTQI+ youth in foster care face. LGBTQI+ youth are overrepresented in 
the child welfare system, far too often experience trauma, including 
being placed in foster care or congregate care settings that are 
hostile to their identity, or lacking access to health care and mental 
health services to support them. This proposal may have federalism 
implications due to the substantial direct financial impact on state or 
local governments. Although ACF has not consulted directly with state 
or local governments prior to issuing this NPRM, ACF has spent years 
reviewing research and agency practices, and supporting pilot programs 
in this area. For example, the National Quality Improvement Center 
(QIC) on Tailored Services, Placement Stability, and Permanency for 
Lesbian, Gay, Bisexual, Transgender, Questioning, and Two-Spirit 
Children and Youth in Foster Care (LGBTQ2S+ QIC) was led by the 
Institute for Innovation & Implementation at the University of Maryland 
School of Social Work in Baltimore along with participating core 
partners: Human Service Collaborative, National Indian Child Welfare 
Association, Ruth Ellis Center, Tufts University, and Youth M.O.V.E. 
National.60 61 State and local governments may be concerned 
about the cost imposed by the NPRM. ACF has attempted to meet this 
concern by sharing costs between the Federal government and state 
governments, providing Federal title IV-E funding for 50 to 75 percent 
of the administrative, recruitment and training costs of this NPRM. We 
also believe that after the first 3 years of implementation, the 
financial impact on state governments would be minimal. 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.
---------------------------------------------------------------------------

    \60\ See QIC LGBTQ2S About the QIC, https://qiclgbtq2s.org/about-the-qic/.
    \61\ Also see Sexual & Gender Minority Youth in Foster Care: 
Assessing Disproportionality and Disparities in Los Angeles, 2014, 
https://www.acf.hhs.gov/cb/report/sexual-gender-minority-youth-foster-care-assessing-disproportionality-and-disparities-los, a 
project which received Children's Bureau funding.
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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)).
    Information collection requirements for case plans required under 
title IV-E and IV-B are currently authorized under OMB number #0970-
0428. This NPRM 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 NPRM simply provides more specificity 
for an LGBTQ child. While agencies will need to develop policies to 
comply with some of the provisions in the NPRM, the casework to provide 
safe placements, consult with children, and notify them of the 
procedures for reporting concerns or requests for placement changes is 
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. This NPRM does not significantly change or add 
burden to existing information collection requirements because the CFSR 
already includes reviewing case plan requirements for safe and 
appropriate placements and collecting information on the state's case 
review system under the statewide assessment. Therefore, no revisions 
are needed in that collection.

[[Page 66765]]

Annualized Cost to the Federal Government

    ACF estimated that the proposed regulatory changes would cost the 
Federal Government $9,712,740 over three fiscal years (2025-2027). ACF 
estimated that the combined total Federal and agency costs over three 
fiscal years would be $40,834,548.
    The estimate for this NPRM 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 NPRM'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 safe and appropriate placement, 
agencies will likely need to increase the recruitment of providers who 
are qualified to provide safe and appropriate care.
     Training agency caseworkers and supervisors on the 
procedural requirements in the NPRM and on how to adequately serve 
LGBTQI+ foster children, and training placement providers seeking to 
become designated as safe and appropriate placement providers 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 proposed 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 paragraph 
(a)(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 safe and appropriate 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 affirmative placement needs 
for children ages 14 and older.
    We assume that states and tribes will not be able to use title IV-B 
funding to implement this NPRM if it becomes a 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 (42 U.S.C. 624(a)). 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 safe and appropriate 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 NPRM 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.
    ACF assumes that if the proposal becomes final, the requirements 
will become effective at the beginning of FY 2025 and thus will apply 
to the entire population of children in foster care who are age 14 and 
older in that FY. This will result in the majority of incremental costs 
for the NPRM activities occurring in FY 2025. We expect costs in FYs 
2026 and 2027 to be about half of those for FY 2025 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. 
After the third year of implementation, we anticipate that incremental 
costs will largely be eliminated as available safe and appropriate 
placement providers are recruited and the proposed policies, 
procedures, and training requirements are implemented.
    Federal cost estimate for implementation of safe and appropriate 
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 2025, 2026, and 2027.
    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 2025, 2026, and 2027. In 
2027 the caseload is estimated at 104,705.
    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 14 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 2025, 2026, and 2027.
    Line 4. National number of children to be notified of safe and 
appropriate (S&A) placement requirements. Line 4 of the table below 
provides an estimate of the number of children in FC who must be 
notified of the safe and appropriate placement provisions in proposed 
Sec.  1355.22(a)(2)(i). For the first year of implementation (FY 2025) 
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 2026 and 2027, 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 2027 the national number 
of children that must be notified of safe and appropriate placement 
requirements is 42,552 (104,705 (Line 2) x 40.64% (Line 4) = 42,552).

[[Page 66766]]

    Line 5. Percentage of national foster care placements for children 
needing S&A placements. Line 5 of the table below displays the 
estimated percentage of national foster care safe and appropriate 
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+. For example, a 2014 
survey of children ages 12 through 21 in foster care in Los Angeles 
County, California, found that 19 percent of children in foster care 
identified as LGBTQI+.\62\ Similarly, a 2021 study of foster children 
ages 12 through 21 in Cuyahoga County, Ohio, found that 32 percent 
identified as LGBTQI+.\63\ 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 2025 on Line 4, the 
national number of children to be notified of safe and appropriate 
placement provisions is 97,973 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 safe and 
appropriate placements, is 14.2 percent ((97,973 x 30%) / 206,812). 
This estimate is purposefully high to account for some children under 
age 14 who may also need such safe and appropriate placements.
---------------------------------------------------------------------------

    \62\ 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.
    \63\ 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.
---------------------------------------------------------------------------

    Line 6. Total incremental costs (Federal and non-Federal) for 
recruiting safe and appropriate foster care placements. Line 6 of the 
table below displays the estimated total cost of recruiting placement 
providers to meet the proposed requirements for safe and appropriate 
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 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 safe and appropriate placements in each FY. The resulting 
amount was then reduced by another 50 percent to reflect the likelihood 
that a significant portion of the safe and appropriate placement 
recruitment budget would be obtained by refocusing the existing budget 
for recruitment costs towards safe and appropriate 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 2025 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 safe and appropriate. This percentage for 
FY 2025 of 14.2 percent (29,392 / 206,812) is then multiplied by the 
national estimated foster care recruitment cost budget ($185,998,176) 
resulting in a total of $26,433,752. This figure is then reduced by 50 
percent to reflect the anticipated incremental cost for safe and 
appropriate placement provider recruitment efforts of $13,216,876. This 
estimate is purposefully high to account for some children under age 14 
who may also need safe and appropriate placements. The total cost for 
FYs 2025, 2026, and 2027 is $24,521,626.
    Line 7. Total costs (Federal and non-Federal) for safe and 
appropriate placement training (caseworkers, supervisors & providers). 
Line 7 of the table below provides the estimated total cost of training 
required for safe and appropriate placements. This estimate for each FY 
is derived by first identifying the baseline cost of providing a model 
SOGIE 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 2025 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 2025 national 
total of 38,374 FC caseworkers. The casework supervisor count uses the 
generally applied ratio of one supervisor for five workers resulting in 
an FY 2025 number of 7,675. The provider trainee population is 
calculated by using the count of children to be notified of safe and 
appropriate 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 2025 safe and 
appropriate placement provider trainee population of 22,044. 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

[[Page 66767]]

three percent per year is applied to these costs for later FYs. For 
example, in FY 2025 we expect a total of 68,092 trainees (caseworkers, 
supervisors & foster care providers). Therefore, the 50 percent of that 
total expected to have travel & per diem costs is 34,046 trainees. At 
an average cost of $109 per participant the total cost in this category 
is $3,711,035. The total FY 2025 estimate for safe and appropriate 
placement training is $10,137,404. This amount lowers to $3,180,036 for 
FY 2027. The total cost for FYs 2025, 2026, and 2027 is $16,312,223.
    Line 8. Total costs (Federal and non-Federal) for all safe and 
appropriate 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 2025 as $23,354,280 and the total cost 
for FYs 2025, 2026, and 2027 is $40,834,548.
    Line 9. Total title IV-E FFP for all safe and appropriate 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 
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 2025 amount is calculated by using 
the FY 2025 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 2025 as $5,635,017 and 
the total cost for FYs 2025, 2026, and 2027 is $9,712,740.
    Line 10. Total title IV-E non-Federal share for all safe and 
appropriate placement activity costs. Line 10 displays the annual 
estimated total title IV-E non-Federal (state or tribe) share of costs 
for all safe and appropriate 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 2025 amount is calculated by using the FY 2025 
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 
2025 as $3,625,219 and the total cost for FYs 2025, 2026, and 2027 is 
$6,478,612.
    Line 11. Total title IV-B non-Federal share for all safe and 
appropriate placement activity costs. Line 11 displays the annual 
estimated total title IV-B non-Federal (state or tribe) share of costs 
for all safe and appropriate 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 
2025 as $14,094,043 and the total cost for FYs 2025, 2026, and 2027 is 
$24,643,197.
    Line 12. Total title IV-E and IV-B non-Federal share for all safe 
and appropriate placement activity costs. Line 12 displays the annual 
estimated total title IV-E and IV-B non-Federal share of costs for all 
safe and appropriate 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 2025 as $17,719,263 and the total 
cost for FYs 2025, 2026, and 2027 is $31,121,809.

----------------------------------------------------------------------------------------------------------------
                                                 2022                                                Three-year
                    Year                      (baseline)      2025          2026          2027          total
----------------------------------------------------------------------------------------------------------------
1. National number of children in foster         391,098       404,273       410,541       416,548  ............
 care (FC).................................
2. National number of children in FC age 14       92,852        97,973       101,482       104,705  ............
 and older.................................
3. National average monthly number of             36,817        38,847        40,239        41,517  ............
 children in title IV-E FC age 14 and older
4. National number of children to be                 N/A        97,973        41,244        42,554  ............
 notified of safe and appropriate (S&A)
 placement provisions......................
5. Percentage of national FC placements for          N/A         14.2%          6.0%          6.2%  ............
 children needing S&A placements...........
6. Total incremental costs (Federal and non-         N/A   $13,216,876    $5,564,006    $5,740,744   $24,521,626
 Federal) for S&A placement recruitment....
7. Total costs (Federal and non-Federal)             N/A   $10,137,404    $2,995,483    $3,180,036   $16,312,223
 for S&A placement training (caseworkers,
 supervisors & providers)..................
8. Total Federal and non-Federal costs for           N/A   $23,354,280    $8,559,488    $8,920,780   $40,834,548
 all S&A placement activities (Lines 6+7)..
9. Total title IV-E FFP for all S&A                  N/A    $5,635,017    $1,993,899    $2,083,823    $9,712,740
 placement activity costs..................
10. Total title IV-E non-Federal share for           N/A    $3,625,219    $1,400,029    $1,453,364    $6,478,612
 S&A placement activity costs..............
11. Total title IV-B non-Federal share for           N/A   $14,094,043    $5,165,561    $5,383,593   $24,643,197
 S&A placement activity costs..............
12. Total titles IV-E and IV-B non-Federal           N/A   $17,719,263    $6,565,589    $6,836,957   $31,121,809
 share for S&A placement activity costs
 (Lines 10+11).............................
----------------------------------------------------------------------------------------------------------------

VI. 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 tribal law. Similarly, 
ACF's Tribal Consultation Policy says that consultation is triggered 
for a new rule adoption that significantly affects tribes,

[[Page 66768]]

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 proposed 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+ child in foster care that supports the child's identity. 
However, we do not expect the costs to be substantial. 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. We 
intend to notify tribal title IV-E/IV-B agency leadership about the 
opportunity to provide comment on the NPRM no later than the day of 
publication. In addition, we intend to engage in consultation with 
tribes during the comment period of this NPRM.
    Jeff Hild, Acting Assistant Secretary of the Administration for 
Children & Families, approved this document on September 22, 2023.

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

List of Subjects in 45 CFR Part 1355

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

    Dated: September 25, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.

    For the reasons set forth in the preamble, ACF proposes to amend 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  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.

    (a) Protections. The title IV-E/IV-B agency must meet the following 
requirements for each child in foster care who identifies as lesbian, 
gay, bisexual, transgender, queer or questioning, or intersex, as well 
as each child who is non-binary or has non-conforming gender identity 
or expression (LGBTQI+).
    (1) Safe and appropriate placement. The title IV-E/IV-B agency must 
ensure that a safe and appropriate placement is available for and 
provided to all children in foster care, including those who identify 
as LGBTQI+. As used in this section, for a placement to be considered 
safe and appropriate for an LGBTQI+ child, the agency must place such 
child with a placement provider that:
    (i) Will establish an environment free of hostility, mistreatment, 
or abuse based on the child's LGBTQI+ status;
    (ii) Is 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. 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 practices that promote the safety and wellbeing of 
LGBTQI+ children; and
    (iii) Will facilitate the child's access to age-appropriate 
resources, services, and activities that support their health and well-
being.
    (2) Process for requesting safe and appropriate placement. The IV-
E/IV-B agency must implement a process by which a child identifying as 
LGBTQI+ may request a safe and appropriate placement, as described in 
paragraph (a)(1) of this section. The title IV-E/IV-B agency must 
consult with such child to provide an opportunity to provide input into 
their safe and appropriate placement. 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 safe and appropriate placements 
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, or 
sex characteristics; or
    (2) Have disclosed their LGBTQI+ identity or whose LGBTQI+ identity 
is otherwise known to the agency;
    (ii) The notice must be provided in an age-appropriate manner, both 
verbally and in writing; and
    (iii) The notice must inform the child of how they may request a 
safe and appropriate placement.
    (3) Process for reporting concerns about placements. The title IV-
E/IV-B agency must implement a process for children identifying as 
LGBTQI+ to report concerns about any placements that fail to meet the 
requirements of paragraph (a)(1) 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, and must include the 
following components:
    (i) The title IV-E/IV-B agency must notify all children who meet 
the requirements of paragraphs (a)(2)(i)(A) and (B) of this section of 
the availability of this process;
    (ii) The notice must be provided in an age-appropriate manner, both 
verbally and in writing; and
    (iii) 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.
    (4) Retaliation prohibited. The title IV-E/IV-B agency must have a 
procedure to ensure that no LGBTQI+ child in foster care experiences 
retaliation for the child disclosing their LGBTQI+ identity, for 
requesting a safe and appropriate placement as described in paragraph 
(a)(1) of this section, or for reporting concerns that their current 
placement is not safe and appropriate. 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.
    (5) Access to supportive and age-appropriate services. The title 
IV-E/IV-B agency must ensure that children who identify as LGBTQI+ have 
access to age-appropriate services that are supportive of their sexual 
orientation and gender identity, including clinically appropriate 
mental and behavioral health supports.
    (b) Placement of transgender and gender non-conforming children in 
foster care. 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 IV-E/IV-B agency must also consult with the 
transgender, gender non-conforming, or intersex child to provide an 
opportunity

[[Page 66769]]

to voice any concerns related to placement when the agency is 
considering a placement in such a facility.
    (c) Training and notification requirements. In addition to meeting 
the requirements of paragraph (a)(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 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 outlined in paragraph (a)(4) of this section.
    (3) 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 outlined 
in paragraph (a)(4) of this section.
    (d) Severability. Any provision of this section held to be invalid 
or 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.
0
3. In Sec.  1355.34, revise 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 his/her needs, including placements described in Sec.  
1355.22(a)(1), 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; and for documentation of the steps 
taken to make and finalize an adoptive or other permanent placement 
when the child cannot return home (sections 422(b)(8)(A)(ii) and 
471(a)(16) 475(5)(A) of the Act and Sec.  1355.22(a)(1));
* * * * *
[FR Doc. 2023-21274 Filed 9-27-23; 8:45 am]
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