Adoption and Foster Care Analysis and Reporting System
| Published date | 23 February 2024 |
| Record Number | 2024-03373 |
| Citation | 89 FR 13652 |
| Court | Children And Families Administration |
| Section | Proposed rules |
Federal Register, Volume 89 Issue 37 (Friday, February 23, 2024)
[Federal Register Volume 89, Number 37 (Friday, February 23, 2024)]
[Proposed Rules]
[Pages 13652-13667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03373]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1355
RIN 0970-AC98
Adoption and Foster Care Analysis and Reporting System
AGENCY: Children's Bureau (CB), Administration on Children, Youth and
Families (ACYF), Administration for Children and Families (ACF), U.S.
Department of Health and Human Services (HHS).
ACTION: Notice of proposed rulemaking.
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SUMMARY: ACF proposes to amend the Adoption and Foster Care Analysis
and Reporting System (AFCARS) regulations that require title IV-E
agencies to collect and report data to ACF on children who enter out-
of-home care, their providers, and children who have a title IV-E
adoption or guardianship assistance agreement to collect additional
data related to Indian children.
DATES: In order to be considered, we must receive written comments on
or before April 23, 2024.
ADDRESSES: ACF encourages the public to submit comments electronically
to ensure they are received in a timely manner. Please be sure to
include identifying information on correspondence. To download an
electronic version of the proposed rule, please go to https://www.regulations.gov/. You may submit comments, identified by docket
number and/or RIN number, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Email: [email protected]. Include docket number and/
or RIN number in subject line of the message.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted without change to
www.regulations.gov, including any personal information provided.
Docket: Go to the Federal eRulemaking Portal at https://www.regulations.gov for access to the rulemaking docket, including any
background documents and the plain-language summary of the proposed
rule of not more than 100 words in length required by the Providing
Accountability Through Transparency Act of 2023.
FOR FURTHER INFORMATION CONTACT: Joe Bock, The Children's Bureau, (202)
205-8618. Telecommunications Relay users may dial 711 first. Email
inquiries to [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority To Issue NPRM
II. Background on AFCARS and Proposed Rule Development
III. Implementation Timeframe
IV. Public Participation
V. Section-by-Section Discussion of Regulatory Provisions
VI. Regulatory Impact Analysis
VII. Tribal Consultation Statement
I. Statutory Authority To Issue NPRM
This NPRM is published under the authority granted to the Secretary
of Health and Human Services (HHS) by section 1102 of the Social
Security Act (the Act), 42 U.S.C. 1302. Section 1102 of the Act
authorizes HHS to publish regulations, not inconsistent with the Act,
as may be necessary for the efficient administration of the functions
for which HHS is responsible under the Act. Section 479 of the Act (42
U.S.C. 679) mandates HHS regulate a data collection system for national
adoption and foster care data. Section 474(f) of the Act (42 U.S.C.
674(f)) requires HHS to impose penalties for non-compliant AFCARS data.
II. Background on AFCARS and Proposed Rule Development
Statute
AFCARS is authorized by section 479 of the Act (42 U.S.C. 679),
which mandates that HHS regulate a data collection system for national
adoption and foster care data. The regulation at 45 CFR 1356.60(d) and
the statute at 42 U.S.C. 674(a)(3) detail cost-sharing requirements for
the Federal and non-Federal share of data collection system initiation,
implementation, and operation. A title IV-E agency may claim Federal
Financial Participation (FFP) at the rate of 50 percent for costs of a
data collection system specified by section 479 of the Act (42 U.S.C.
679). AFCARS data is used for a variety of requirements, including but
not limited to, providing national statistics on the child welfare
population, budgeting, providing reports to Congress, and monitoring
compliance with the title IV-B and IV-E requirements. Title IV-E
agencies must submit data files on a semi-annual basis to ACF. AFCARS
regulations were first published in 1993 and states began submitting
data in fiscal year (FY) 1995. AFCARS is regulated at 45 CFR
1355.41-.47.
[[Page 13653]]
Recent Regulatory History
ACF published a final rule revising the AFCARS regulations on
December 14, 2016 (81 FR 90524, hereafter referred to as the ``2016
final rule''). The rule reflected child welfare legislative changes
that occurred since 1993 and included many new data elements including
information related to the Indian Child Welfare Act of 1978 (ICWA), and
about the sexual orientation of the child and their providers (i.e.,
foster parents, adoptive parents, and legal guardians), and implemented
statutory fiscal penalties for non-compliant AFCARS data. This rule was
never implemented. Before that rule became effective, ACF published a
rule delaying the implementation timeframe (83 FR 42225, August 21,
2018). On May 12, 2020, ACF published a final rule to again amend the
AFCARS regulations (85 FR 28410, hereafter referred to as the ``2020
final rule''). The 2020 final rule eliminated some of the data elements
that were promulgated in the 2016 final rule and reduced the level of
detail in others. The Executive Orders and actions leading to the 2020
final rule are explained in detail in the preambles to the following
issuances: Advance Notice of Proposed Rulemaking (ANPRM) issued March
15, 2018 (83 FR 11449); NPRM issued April 19, 2019 (84 FR 16572); and
the 2020 final rule, issued May 12, 2020 (85 FR 28410). The 2020 final
rule was implemented on October 1, 2022, and title IV-E agencies are
now required to report AFCARS data as codified in the regulation at 45
CFR 1355.41-.47. Title IV-E agencies were required to submit the first
data files with this information to ACF in May 2023. More information
is available on the CB website at: https://www.acf.hhs.gov/cb/data-research/afcars-technical-assistance.
Some of the data elements that were eliminated or altered in the
2020 final rule related to reporting on the details of ICWA's
procedural protections (see also discussion at 84 FR 16573, 16575,
16577, and 85 FR 28411, and 28412). Other data elements, such as
reporting on transition plans, educational stability, and health
assessment dates and whether they were timely, were also eliminated or
altered (see also 84 FR 16576 and 85 FR 28411).
Current NPRM Development
We are now proposing adding data elements and revising some of the
current data elements to report more detailed information related to
ICWA's procedural protections to AFCARS, in order to fulfill the AFCARS
statutory mandate to provide comprehensive national information on the
demographics of ``adoptive and foster children and their biological and
adoptive foster parents'', ``the status of the foster care
population'', and ``the extent and nature of assistance provided by
Federal, state, and local adoption and foster care programs and the
characteristics of the children with respect to whom such assistance is
provided'' (section 479(c)(3) of the Act (42 U.S.C. 679(c)(3))).
For American Indian and Alaska Native (AI/AN) children, who are
subject to both Title IV-E of the Social Security Act and ICWA, it is
impossible to fully understand their experiences in foster care without
understanding the extent to which they receive the procedural
protections of ICWA. ICWA was enacted in 1978 to ``promote the
stability and security of Indian tribes and families by the
establishment of minimum Federal standards for the removal of Indian
children from their families and the placement of such children in
foster or adoptive homes which will reflect the unique values of Indian
culture.'' \1\ Congress found ``that an alarmingly high percentage of
Indian families are broken up by the removal, often unwarranted, of
their children from them by nontribal public and private agencies and
that an alarmingly high percentage of such children are placed in non-
Indian foster and adoptive homes and institutions; and that the States,
exercising their recognized jurisdiction over Indian child custody
proceedings through administrative and judicial bodies, have often
failed to recognize the essential tribal relations of Indian people and
the cultural and social standards prevailing in Indian communities and
families.'' \2\ These longstanding practices cause significant harm to
Indian children by unnecessarily separating them from their families
and communities. As the Supreme Court affirmed in its 2023 decision
upholding ICWA:
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\1\ 25 U.S.C. 1902.
\2\ 25 U.S.C. 1901(4) and (5).
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In 1978, Congress enacted the Indian Child Welfare Act (ICWA) out
of concern that ``an alarmingly high percentage of Indian families are
broken up by the removal, often unwarranted, of their children from
them by nontribal public and private agencies.'' 92 Stat. 3069, 25
U.S.C. 1901(4). Congress found that many of these children were being
``placed in non-Indian foster and adoptive homes and institutions,''
and that the States had contributed to the problem by ``fail[ing] to
recognize the essential tribal relations of Indian people and the
cultural and social standards prevailing in Indian communities and
families.'' Sec. Sec. 1901(4), (5). . . . The Act thus aims to keep
Indian children connected to Indian families.
Haaland v. Brackeen, 143 S. Ct. 1609, 1623 (2023)
Congress recognized when it passed ICWA that the minimum Federal
standards established by ICWA ``for the removal of Indian children from
their families and the placement of these children in foster or
adoptive homes'' were needed to counter the longstanding state policies
and practices that contributed to the disproportionate removal of
Indian children from their families and communities (see 81 FR 38779,
June 14, 2016). ICWA's key protections include:
--A presumption that cases regarding foster care placement or
termination of parental rights should be transferred to tribal courts
if the parent, Indian custodian, or Indian tribe so requests (25 U.S.C.
1911(b));
--The right for Indian tribes and Indian custodians to intervene in
state court proceedings regarding foster care placement and termination
of parental rights (25 U.S.C. 1911(c));
--Requirement that a party seeking foster care placement or termination
of parental rights for an Indian child must notify the parent or Indian
custodian and the Indian child's tribe (25 U.S.C. 1912(a));
--Requirement to make active efforts to provide services to prevent the
breakup of the Indian family before seeking foster care placement or
termination of parental rights to an Indian child (25 U.S.C. 1912(d));
--Requirement that termination of parental rights may only be ordered
if the court has determined that continued custody of the child by the
parent or Indian custodian is likely to result in serious emotional or
physical damage to the child. The determination must be supported by
evidence beyond a reasonable doubt, including the testimony of
qualified expert witnesses (25 U.S.C. 1912(f) and 25 CFR 23.122).
However, inconsistent state practices in implementation ``ha[ve]
led to significant variation in applying ICWA's statutory terms and
protections'' (see 81 FR 38779, June 14, 2016). A final rule issued by
the Department of Interior, Bureau of Indian Affairs (BIA) noted that
at the time of ICWA's passage, ``Congress found that removal of
children and unnecessary termination of parental rights were utilized
to separate Indian children from their Indian
[[Page 13654]]
communities'' and that ``[t]he standards used by State and private
child-welfare agencies to assess Indian parental fitness promoted
unrealistic non-Indian socioeconomic norms and failed to account for
legitimate cultural differences in Indian families'' (81 FR 38780, June
14, 2016). Additionally, there have been studies indicating that
implementation of ICWA is inconsistent.\3\ Forty-five years after the
passage of ICWA, AI/AN children continue to be over-represented in the
child welfare system: during FY 2021, AI/AN children made up one
percent of the U.S. child population, but two percent of the child
welfare population.\4\ Additionally, recent data shows that AI/AN
children are at greater risk than other children of being confirmed for
maltreatment and placed in out-of-home care.\5\ The American Academy of
Pediatrics (AAP) recently stated in their Amicus brief to the Supreme
Court for Haaland v. Brackeen, ``[R]emoving an AI/AN child from the
child's parents and then failing to foster the child in an AI/AN
community where possible would present a significant risk of
exacerbating existing trauma--particularly by precluding the
opportunity for the child to experience, internalize, and gain strength
from the child's AI/AN community and culture, as well as the
relationships that come with that community.'' \6\ And generally,
studies show that procedural bias, such as lack of notice to Tribal
parents in child welfare cases, contributed to displacements of AI/AN
children from their communities.\7\ Additionally, adverse childhood
experiences \8\ and generational/historical trauma \9\ contribute to
disparate outcomes of AI/AN youth. Specifically related to adverse
childhood experiences, AI/AN children are more likely than children in
the total U.S. population to have lived in poverty (27.8 versus 19.5
percent), been a victim of violence or witnessed violence in their
neighborhood (15.9 versus 11.6 percent) and lived with a person with a
substance use disorder (23.6 versus 11.6 percent).\10\
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\3\ See also A Research and Practice Brief: Measuring Compliance
with the Indian Child Welfare Act, Casey Family Programs (2015)
https://www.casey.org/media/measuring-compliance-icwa.pdf.
\4\ 4,622 children with a reported race (per 45 CFR
1355.44(b)(7)) of AI/AN entered foster care during FY 2021 (AFCARS
Report 29). While that is two percent of the child welfare
population, AI/AN children made up one percent of the child
population (Child Welfare Information Gateway (2021) Child Welfare
Practice to Address Racial Disproportionality and Disparity, https://www.childwelfare.gov/pubs/issue-briefs/racial-disproportionality/).
We also want to note that the reported race of AI/AN is the closest
we have to understanding whether a child is an ``Indian child'' as
defined in ICWA at 25 U.S.C. 1903, as of FY 2021.
\5\ Ibid.
\6\ See page 21, retrieved from https://www.supremecourt.gov/DocketPDF/21/21-376/234042/20220819140750948_21-376.amics.brief.FINAL.pdf.
\7\ Ryan Seelau, Regaining Control Over the Children: Reversing
the Legacy of Assimilative Policies in Education, Child Welfare, and
Juvenile Justice that Targeted Native American Youth, 37 a.m. INDIAN
L. REV. 63 (2012), https://digitalcommons.law.ou.edu/ailr/vol37/iss1/3.
\8\ National Indian Child Welfare Association, State of American
Indian/Alaska Native Children and Families, Part 3: Adverse
Childhood Experiences and Historical Trauma, (2022) https://www.nicwa.org/wp-content/uploads/2022/11/NICWA-State-of-AIAN-Children-and-Families-Report-PART-3.pdf.
\9\ Ehlers CL, Gizer IR, Gilder DA, Ellingson JM, Yehuda R.
Measuring historical trauma in an American Indian community sample:
contributions of substance dependence, affective disorder, conduct
disorder and PTSD. Drug Alcohol Depend. 2013 Nov 1;133(1):180-7.
doi: 10.1016/j.drugalcdep.2013.05.011. Epub 2013 Jun 20. PMID:
23791028; PMCID: PMC3810370. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3810370/.
\10\ Around Him, D. & DeMand A., American Indians and Alaska
Natives Must Be Included in Research on Adverse Childhood
Experiences Child Trends, (2018) https://www.childtrends.org/blog/american-indians-alaska-natives-adverse-childhood-experiences.
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We anticipate that gathering more ICWA-related data would help ACF,
researchers, and other policymakers better understand the status and
experiences of AI/AN children and families interacting with the state
child welfare systems and better address the continuing
overrepresentation in foster care and other poor outcomes that AI/AN
children experience. More complete data collection would provide a
foundation for improved policy development, targeted technical
assistance, and focused resource. This could assist in efforts to
mitigate disproportionality for AI/AN children and families, support
pathways to timely permanency for these children, and help maintain the
integrity of tribal communities.
ACF also seeks additional input on how the data from this NPRM may
be used and particularly seeks to understand how this data may be of
utility via national statistics. ACF wishes to understand from states
specifically on the utility of the data. Since it has been many years
since the 2016 final rule and states have submitted data files under
the 2020 final rule, ACF wishes to understand the state perspective for
today's NPRM.
Under the 2020 rule, the ICWA-related information currently
reported to AFCARS is:
whether the child, mother, father, foster parents,
adoptive parents, and legal guardians are tribal members,
whether the state made inquiries whether the child is an
Indian child as defined in ICWA,
the date that the state was notified by the Indian tribe
or state or tribal court that ICWA applies, and
whether the Indian child's tribe(s) was sent legal notice.
While that is helpful, it does not provide sufficient information
about the unique factors particular to AI/AN children to meaningfully
inform policymaking. Collecting more data elements related to ICWA's
procedural protections would enable HHS, other Federal agencies, and
the states to target policy development, training, and technical
assistance to specific areas of need.
ACF recognizes that this proposed rulemaking represents a change in
approach from our most recent AFCARS rulemaking, the 2020 final rule,
which had substantially reduced the number of ICWA data elements to be
collected in AFCARS from those that were required under the 2016 final
rule. This proposed rulemaking includes nearly all of the ICWA data
elements from the 2016 final rule that were not included in the 2020
final rule, with some modified to reduce the reporting burden. As ACF
has given the matter further consideration since issuing the 2020 final
rule, ACF has determined that it is in the best interest to collect
these additional data elements. Collecting these additional data
elements related to ICWA's protections would provide critical
information about ICWA's procedural protections. These procedural
protections were affirmed in the 2023 Brackeen decision upholding ICWA,
reaffirming ICWA's importance in addressing the longstanding practices
that caused harm to Indian children by unnecessarily separating them
from their families and communities. Also, collecting this data may
provide insight into potential areas for technical assistance and
supports to help improve child welfare outcomes. As we explained in the
Supplemental Notice of Proposed Rulemaking in 2016, we view robust
ICWA-related data as necessary to allow ACF to: assess the current
state of adoption and foster care programs and relevant trends that
affect AI/AN families; address the unique needs of AI/AN children in
foster care and their families by clarifying how the ICWA requirements
and title IV-E/IV-B requirements interact in practice; improve training
and technical assistance to help states comply with titles IV-E and IV-
B of the Social Security Act for AI/AN children; develop future
national policies concerning AI/AN children served by
[[Page 13655]]
child welfare programs; and inform and expand partnerships across
Federal agencies that invest in Indian families and promote resilient,
thriving tribal communities (81 FR 20283, April 17, 2016). Upon further
consideration, ACF believes that these reasons remain equally valid now
in determining the need for ICWA-related data collection.
While ACF's role is not to enforce state compliance with ICWA--that
role falls to the Department of Interior's Bureau of Indian Affairs--it
is ACF's role, in part, to ensure that state child welfare systems
appropriately serve all children, including AI/AN children, and to set
national child welfare policy that takes into account the needs of all
foster and adoptive children. Additionally, there is no other
comprehensive, national data collection related to ICWA that can inform
our understanding of the experiences of tribal children in the child
welfare system. Given the long history of removal of AI/AN children
from their families and communities, the unique cultural considerations
that apply to tribes,\11\ and Congress's determination that the ICWA
procedural protections are essential for AI/AN children and
families,\12\ we have determined that collecting robust ICWA-related
data concerning AI/AN children in the child welfare system can provide
valuable insights for ACF, states, tribes and policymakers. ACF is the
most appropriate agency in the Federal government to collect data from
state child welfare agencies. The proposed collection of ICWA-related
data will allow ACF and other stakeholders to better understand how the
ICWA procedural protections are operating in the context of child
welfare, whether implementation of those protections results in
improved outcomes for children, and where states are struggling to
implement them or in need of additional resources.
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\11\ EagleWoman (Wambdi A. WasteWin), Sisseton-Wahpeton Dakota
Oyate of the Lake Traverse Reservation, Angelique and G. William
Rice, United Keetoowah Band of Cherokee Indians in Oklahoma.
American Indian Children and U.S. Policy. Tribal Law Journal 16, 1
(2016). https://digitalrepository.unm.edu/tlj/vol16/iss1/2.
\12\ 25 U.S.C. 1901 and 1902.
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We understand that in establishing these additional data elements,
this proposed data collection would put an additional burden on state
child welfare agencies. However, this will be the case for any
additional data collection requirements. We have given this serious
consideration, both out of concern for the effective functioning of
those systems in their core function of serving at-risk families and
because the AFCARS statute requires ACF to ``avoid unnecessary
diversion of resources from agencies responsible for adoption and
foster care'' when regulating AFCARS (section 479(c)(1) of the Act (42
U.S.C. 679(c)(1))). We are mindful of the cost to state title IV-E
agencies of collecting this data, but at the same time, we are mindful
of the costs to AI/AN children, families, and tribes, as well as ACF,
states, and policymakers, of not collecting the data. While any data
collection requirement imposes costs, the key consideration under the
statute is whether such costs result in an ``unnecessary diversion of
resources'' from agencies. ACF proposes to collect robust ICWA-related
data in order to understand and identify policies to address the
disproportionality of AI/AN child involvement in the child welfare
system.13 14 On balance, we have determined that the value
of collecting the data outweighs the burden it imposes, and that any
cost imposition is not ``unnecessary.''
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\13\ Child Welfare Information Gateway (2021) Child Welfare
Practice to Address Racial Disproportionality and Disparity, https://www.childwelfare.gov/pubs/issue-briefs/racial-disproportionality/.
\14\ See literature review on protective factors research and
calls for further research to assess protective factors for AI/AN
children: Henson M., Sabo S., Trujillo A., Teufel-Shone N.
Identifying Protective Factors to Promote Health in American Indian
and Alaska Native Adolescents: A Literature Review. J Prim Prev.
2017 Apr;38(1-2):5-26. doi: 10.1007/s10935-016-0455-2. PMID:
27826690; PMCID: PMC5313316.
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In coming to this conclusion, we have considered the comments that
we received on the 2018 ANPRM and the 2019 NPRM. Thirty-three states
commented in 2018 and nine state/local agencies in 2019 expressing
concern with the 2016 ICWA data reporting requirements.\15\ They
expressed concern that the requirements were too specific for a
national data set and are better suited for a qualitative review.\16\
Four states also reported that under one percent of the children in
their out-of-home care population were ICWA-applicable. Of the few
states that supported including the ICWA-related data elements (three
in 2018 and three in 2019), they said that they had higher numbers of
tribal children and supported including some additional ICWA-related
data elements to better inform policy decisions and program management.
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\15\ 84 FR 16,572 at 74.
\16\ 84 FR 16,572 at 74.
--In contrast, all of the Indian tribes/consortiums and organizations
that represent Tribal interests that commented, supported maintaining
all of the ICWA-related data elements from the 2016 final rule. They
argued that the data elements should be maintained because: ICWA has
been law for 40 years but there has been little in-depth data and
limited Federal oversight regarding this law.
--Collecting ICWA-related data in AFCARS is a step in the right
direction to ensure that Indian families are kept together when
possible and provide insight into state compliance with ICWA's
requirements.
--Without any uniform, national data regarding ICWA's requirements,
policymakers do not understand the scope of issues to inform policy
changes.
--While some Indian tribes reported good working relationships with
some states, the commenters expressed concerns that there are children
in state custody who are not identified as Indian children and thus are
not protected under ICWA.\17\
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\17\ 84 FR 16,572 at 74.
We also note that in both 2018 and 2019, there were significant
comments submitted by researchers, non-governmental organizations with
relevant expertise, and other stakeholders and advocates. While these
commenters were typically not in a position to address issues relating
to costs of compliance, their comments were informative in considering
the utility of the potential data collection. In the 2019 preamble, ACF
stated that the ``majority of these commenters opposed streamlining the
data [as compared with what was required in 2016] for reasons similar
to the commenters representing tribal interests, such as underscoring
the importance of certain casework activities and showing national
trends. The advocates, tribes, and commenters representing tribal
interests expressed that:
Currently, there are few data collection efforts at the
state and Federal level that provide meaningful data on American Indian
and Alaska Native (AI/AN) children under the custody of state child
welfare authorities and how ICWA is applied in their cases. This
population is overrepresented within state foster care systems
nationally--in some states by as much as 10 times their population
rate. The Federal protections that ICWA provides these children and
their families have the potential to reduce disproportionality and
achieve permanency for these children. However, without the Federal
government collecting more detailed case-level data, it is impossible
to know how many AI/AN children are receiving ICWA protections.
Collecting this data will also help the Administration for
[[Page 13656]]
Children and Families (ACF) provided targeted assistance to states
where there are implementation concerns.'' This comment was provided by
the National Indian Child Welfare Association.
States should currently be asking questions that ascertain
whether a child is an Indian child as defined in ICWA, including
inquiring about the family's tribal membership status;
Specific data elements on notification of proceedings and
transfers to tribal court are important because the timelines in ICWA
are rarely met; and
Information on termination of parental rights, removals
under ICWA, and placement preferences are important for determining
ICWA compliance (84 FR 16574).
Most other advocacy organizations opposed reducing the data
elements as compared with what was required under the 2016 rule for
reasons similar to the commenters representing tribal interests, such
as underscoring the importance of certain casework activities and
showing national trends. The commenters provided broad commentary on
the benefit of having new data outweighs the burden of having to report
it (84 FR 16574). In the 2020 final rule preamble, all Indian tribes,
tribal organizations or consortiums, and organizations representing
tribal interests opposed reducing the ICWA-related data elements
primarily because they felt that all data elements in the 2016 final
rule were needed to assess ICWA compliance, and that national
information is important to address disparities, analyze outcomes, and
help in working with Indian children and families (85 FR 28411). The
national advocacy organizations and other individuals or entities that
commented expressed general opposition to the reduction of required
data elements for various reasons with the general sentiment being that
the 2016 final rule would provide more insight into the foster care
population, promote visibility for marginalized groups, and allow data-
informed legislating, policy, and program decisions (85 FR 28411). The
reasons set forth above align with ACF's need for including the
expanded ICWA-related data elements.
In the 2019 NPRM, we had concluded that the concerns articulated by
a set of states weighed in favor of significantly reducing the number
of ICWA-related data elements from the 2016 final rule and proposed to
reduce required ICWA reporting. In coming to that conclusion, among
other reasons, we took the position that it was overly burdensome to
require all states to modify their data systems to collect data that
would only apply to a small percentage of children. However, while all
states would have to modify their data systems to allow for collection
of the proposed data elements, and report information from court
orders, agency caseworkers will only have to actually collect and enter
the new ICWA-related data elements proposed here for those children to
whom ICWA in fact applies, so the ongoing burden on states with small
AI/AN populations would be low (84 FR 16572, April 19, 2019).
In the 2020 final rule, we provided additional justification for
the decision not to include additional ICWA-related data elements: (1)
HHS is not the cognizant agency over implementing, overseeing, or
assessing compliance with ICWA and thus is not able to interpret
various ICWA requirements; (2) the IV-B statute at section 422(b)(9) of
the Act (42 U.S.C. 622(b)(9)) does not provide authority for ACF to
collect ICWA-related data in AFCARS; (3) the AFCARS statute does not
authorize ACF to collect data in AFCARS for purposes of assessing
states' compliance with ICWA; and (4) ACF would not be able to release
specific information regarding a child's tribal membership or ICWA
applicability to requestors, except to the Indian tribe in which the
child is or may be a member, in order to protect confidentiality given
the low numbers of children to whom ICWA applies. 85 FR at 28, 412-13.
Upon further consideration, we do not consider any of these points
reasons to not collect the proposed data. First, ACF has never
contended that HHS is the cognizant agency with responsibilities over
implementing, overseeing, or assessing compliance with ICWA. Collecting
the proposed data would provide valuable insights into the experiences
of tribal children in the child welfare system, and the data would not
be collected to implement, oversee or assess compliance with ICWA. ACF
will consult with BIA to ensure that ACF's guidance is consistent with
BIA's interpretations of the ICWA statute and regulations, but not
because ACF has any role in ICWA enforcement.
Second, Section 422(b)(9) of the Act (42 U.S.C. 622(b)(9)) requires
states to include in their child welfare services plans a description,
developed after consultation with tribal organizations of the specific
measures taken by the State to comply with ICWA. Neither in 2016 nor
now is ACF relying on Section 422(b)(9) as authority for this proposed
regulation, though the existence of Section 422(b)(9) does underscore
Congress' recognition of the importance of ICWA compliance in the work
of child welfare agencies.
The third point noted above--that the AFCARS statute does not
authorize ACF to collect data in AFCARS for purposes of assessing
states' compliance with ICWA--largely misses the point of this data
collection. As discussed above, it is not to assess ICWA compliance,
but rather to better understand the experiences of tribal children
whose cases are subject to the requirements of ICWA.
The fourth point above was that ACF would not be able to release
specific information regarding a child's tribal membership or ICWA
applicability except to the Indian tribe in which the child is or may
be a member in order to protect confidentiality. ACF had reached this
decision in light of the need to ensure privacy and confidentiality as
several states have less than a handful of Indian children in foster
care. There is a significant privacy interest in that the information
given could reveal a child's identity, which could allow the
identification of children. Safeguarding information of children in
small jurisdictions is consistent with existing practice. The current
practice for small populations in jurisdictions is to aggregate the
data into larger groups so that those children cannot be identified.
This current practice would not change under this NPRM. Accordingly,
this reduces the availability of data on Indian children to non-tribal
members when there are small numbers of children in foster care.
Nevertheless, ACF does not believe this is a sufficient basis for not
moving forward with the rule.
In the 2020 Final Rule, ACF also based the decision not to
reinstate additional ICWA-related data elements in part on concerns
about the reliability and consistency of the data (85 FR 28411 and
28419). ACF's current understanding is that caseworkers would have to
draw language from court orders and possibly transcripts to be able to
report the specific information in these proposed data elements, and
that this may be difficult at times. Furthermore, ACF's current belief
is that information and actions taken to meet ICWA's requirements may
be performed by the courts themselves, and therefore the state title
IV-E agency currently cannot always guarantee they have the accurate
information for reporting the AFCARS data elements. Both of these
possibilities may raise questions about reliability, but they can be
addressed through training and technical assistance. In order to better
inform its understanding, ACF seeks comment from states on how this
work is done currently, whether the information is available in the
case management
[[Page 13657]]
system or data fields that could be extracted for AFCARS reporting, and
what measures states are taking to ensure the reliability of the data.
With this information, ACF believes that it can provide specific and
tailored technical assistance and training to states to address any
reliability concerns. ACF plans to work with BIA on implementation of
an eventual final rule and will work with BIA to clarify what
information is required to be reviewed and interpreted so that agencies
can input and report the proper data for AFCARS. ACF will also work
with BIA to address instances where court orders are not clear or if
specific information is missing within and how that affects AFCARS
reporting. Given the importance of this data and why AFCARS is the
right mechanism to collect it, as explained in the preamble, ACF is
committed to providing the tailored technical assistance and training
needed to help address any data reliability issues that may arise and
believes it is sufficiently reliable to be worth collecting.
As studies cited previously in this preamble demonstrate, there are
disproportionately negative outcomes generally for AI/AN children,
youth, and families, AI/AN children continue to be over-represented in
the child welfare system and are at greater risk than other children of
being confirmed for maltreatment and placed in out-of-home care. Having
more data on ICWA's procedural requirements may help these issues. ACF
realizes that all states have or are in the process of modifying their
data systems to collect the new data elements, largely unrelated to
ICWA, required by the 2020 final rule. ACF also realizes that adding
additional data elements to state data collection systems will present
an additional financial and personnel cost and that the data is
qualitative in nature, meaning that it likely will be more costly and
time-consuming to report because, we understand, that the information
is in paper files or case notes, and not already within data fields
ready for reporting. However, ACF no longer sees these as sufficient
reasons to not require reporting of ICWA procedural requirements in
AFCARS. AFCARS may be modified when needed, for example, to reflect
legislative changes and other changing needs for particular kinds of
data. We plan to build in time for states to make the needed
modifications and invite comments on what timeframe they would see as
sufficient.
Regarding reliance interests of states for this AFCARS NPRM, ACF
interprets this to mean that states may be relying on the 2020 final
rule remaining in place the way it is. States are in the process of
updating information systems to be able to report the 2020 final rule
appropriately because most were not compliant in the first data file
submission that occurred in May 2023. State will have to expend costs
to implement an eventual final rule, as estimated in the Burden
estimate section of this preamble. However, the AFCARS regulations may
be amended at any time to accommodate changes in law, policy, or other
matters that are tied to the title IV-B/IV-E programs. Accordingly, ACF
does not view this NPRM as implicating states' reliance interests.
Executive Orders 13985 and 14091
This NPRM is consistent with the administration's priority of
advancing equity for those historically underserved and adversely
affected by persistent poverty and inequality (Executive Order 13985
Advancing Racial Equity and Support for Underserved Communities Through
the Federal Government, Jan. 20, 2021 and 14091 Further Advancing
Racial Equity and Support for Underserved Communities Through the
Federal Government, Feb. 16, 2023). Research well-documents the
overrepresentation of certain racial and ethnic groups in foster care
relative to their representation in the general population. American
Indian or Alaska Native children are at greater risk than other
children of being confirmed for maltreatment and placed in out-of-home
care. They stay in foster care longer. For example, they are less
likely to reunify with their families.\18\ Additionally, ACF, in using
the additional data proposed in this NPRM, could use it to better
understand opportunities to advance equity related to the disparate
outcomes faced by AI/AN children in foster care.
---------------------------------------------------------------------------
\18\ Child Welfare Information Gateway, 2021, Child welfare
practice to address racial disproportionality and disparity, U.S.
Department of Health and Human Services, Administration for Children
and Families, Children's Bureau. https://www.childwelfare.gov/pubs/issue-briefs/racial-disproportionality/.
---------------------------------------------------------------------------
Summary of Proposal
Currently, state title IV-E agencies report the following related
to ICWA in AFCARS:
Tribal membership of the child, mother, father, foster
parents, adoptive parents, and legal guardians--Sec. 1355.44(b)(4),
(c)(3) and (4), (e)(10) and (15), and (h)(4) and (9).
Whether the state made inquiries whether the child is an
Indian child as defined in ICWA--Sec. 1355.44(b)(3).
Whether ICWA applies for the child and the date that the
state was notified by the Indian tribe or state or tribal court that
ICWA applies--Sec. 1355.44(b)(5).
Whether the Indian child's tribe(s) was sent legal
notice--Sec. 1355.44(b)(6).
Our proposal is to require state title IV-E agencies to revise some
of the current data elements to report more detailed information on
ICWA's procedural protections in section 1355.43(b) and to add data
elements on certain aspects of ICWA's procedural protections for
requests for transfers to tribal court, termination/modification of
parental rights, and foster care, pre-adoptive and adoptive placement
preferences, in a new Sec. 1355.44(i).
In summary, we propose to require state title IV-E agencies to
report the following additional information related to ICWA's
procedural protections:
Whether the state inquired with certain individuals as to
whether the child is an Indian child as defined in ICWA and when the
agency first discovered information indicating that the child is or may
be an Indian child as defined in ICWA (section 1355.44(b)(3) and (4)).
Information on whether a court determined that ICWA
applies for the child, and whether the court decision included
testimony of one or more qualified expert witnesses was included for
voluntary and involuntary terminations of parental rights, and removals
(section 1355.44(b)(6), (i)(2), (3), and (4)).
Whether the child's parent or Indian custodian was sent
notice in accordance with ICWA (section 1355.44(b)(5)).
Information on requests to transfer cases to Tribal court
(section 1355.44(i)(1)).
Information on meeting the placement preferences under
ICWA (section 1355.44(i)(5)-(8) and (10)-(13)).
Whether the court determined that the IV-E agency made
active efforts to prevent the breakup of the Indian family (section
1355.44(i)(9)).
The section-by-section preamble explains in detail how we propose
the current CFR be amended to include the new information to report.
III. Implementation Timeframe
Implementation of changes to the AFCARS data elements as described
in this NPRM and a precise effective date are dependent on the issuance
of a final rule. We anticipate providing state title IV-E agencies with
at least two full fiscal years before we will require them to collect
and report additional data elements. We seek state title IV-E
[[Page 13658]]
agency comments on the timeframe based on their experiences with
implementation of the 2020 final rule.
IV. Public Participation
ACF welcomes comments on all aspects of this proposed rule. ACF
specifically seeks comments on the potential benefits and disadvantages
of including this data in AFCARS, and from state title IV-E agencies on
the cost and burden to incorporate this proposal into their
administrative data sets, including information on the following
because this will be used to inform the burden estimates in the
Paperwork Reduction Act section of an eventual final rule (see VI.
Regulatory Impact Analysis):
An estimate of recordkeeping hours to be spent annually to
gather and enter the information proposed in this NPRM into the
agency's electronic case management system, training and administrative
tasks associated with training personnel on these requirements (e.g.,
reviewing instructions, developing training and manuals), and
developing or modifying procedures and systems to collect, validate,
and verify the information and adjusting existing ways to comply with
AFCARS requirements.
Reporting hours spent annually extracting the information
proposed in this NPRM for AFCARS reporting and transmitting to ACF.
V. Section-By-Section Discussion of Regulatory Provisions
References throughout this proposed rule to ``child'' or
``children'' are inclusive of youth and young adults aged 18 or older
who are served by the title IV-E and IV-B programs. We use these terms
in the regulatory text and section-by-section preamble discussion
because these are used throughout the title IV-E and IV-B statute and
regulations.
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.
Section 1355.43 Data Reporting Requirements
This section contains data reporting requirements for AFCARS, such
as report periods and deadlines for submitting data files, and
descriptions of data quality errors. We propose technical edits to
amend paragraphs (b)(1) and (2) to correct cross references to data
elements in Sec. 1355.44 and remove paragraph (b)(3) to eliminate
obsolete dates.
Section 1355.44 Out-of-Home Care Data File Elements
This section contains the data element descriptions for the Out-of-
Home Care Data File.
Section 1355.44(b) Child Information
Paragraph (b) contains specific information for the identified
child who is in the Out-of-Home Care Reporting Population.
Researching reason to know a child is an ``Indian Child'' as
defined in ICWA. In paragraph (b)(3), we propose that the state title
IV-E agency report whether it researched whether there is reason to
know that the child is an Indian child as defined in ICWA. We propose
to require that the information in each paragraph (b)(3)(i) through
(vi) is reported by the state title IV-E agency, which is whether it
inquired with the following entities: the child; the child's biological
or adoptive mother and father; the child's Indian custodian; and the
child's extended family (as defined in ICWA). The state title IV-E
agency must also indicate whether the domicile or residence of the
child, the child's parent, or the child's Indian custodian is on a
reservation or in an Alaska Native village. This proposal replaces and
expands the current data element in Sec. 1355.44(b)(3) that asks
whether the state title IV-E agency made inquiries as to whether the
child is an Indian child as defined in ICWA, with a yes/no response
option.
Child's tribal membership and reason to know. In paragraph (b)(4),
we propose that the state title IV-E agency continue to report
information on the child's tribal membership and the state's discovery
of information that the child may be an Indian child as defined in
ICWA. In paragraphs (b)(4)(i) and (ii), we propose that the state title
IV-E agency continue to report whether the child is a member of or
eligible for membership in a Federally recognized Indian tribe, and if
``yes,'' the state title IV-E agency must indicate all Federally
recognized Indian tribe(s) that may potentially be the Indian child's
tribe(s). This information is currently reported in Sec.
1355.44(b)(4)(i) and (ii) and is used to help identify children in the
out-of-home care reporting population who are or may be tribal members.
In paragraphs (b)(4)(iii) and (iv), we propose to require the state
title IV-E agency to indicate whether it knows or has reason to know
that the child is an Indian child as defined in ICWA, and if ``yes,''
then the state title IV-E agency must indicate the date that it first
discovered the information indicating the child is or may be an Indian
child as defined in ICWA. The information reported for paragraphs
(b)(4)(iii) and (iv) and (6) (discussed below) would replace the
current data element in Sec. 1355.44(b)(5), which requires the state
IV-E agency to report only whether ICWA applies and if so, the date the
state title IV-E agency was notified, because this proposal is
requiring a state title IV-E agency to report more details related to
ICWA's procedural requirements on ``reason to know''.
Notification. In paragraph (b)(5), we propose to require that the
state title IV-E agency report whether certain entities were sent
notice in accordance with ICWA. In paragraph (b)(5)(i) and (ii), we
propose that the state title IV-E agency report whether the Indian
child's tribe(s) was sent legal notice in accordance with 25 U.S.C.
1912(a) (which is currently required in Sec. 1355.44(b)(6)) and newly
require that if ``yes,'' the state title IV-E agency must report the
Indian tribe(s) that were sent notice. In paragraph (b)(5)(iii), we
propose that the state title IV-E agency report whether the Indian
child's parent or Indian custodian was sent legal notice prior to the
first child custody proceeding in accordance with 25 U.S.C. 1912(a).
These data elements replace and expand on the information reported for
the current data element in Sec. 1355.44(b)(6) that asks whether the
Indian child's tribe(s) was sent legal notice with yes/no response
options.
Application of ICWA. In paragraph (b)(6), we propose that the state
title IV-E agency report information related to ICWA's application. In
paragraph (b)(6)(i), we propose to require the state title IV-E agency
to report whether a court determined that ICWA applies or that the
court is applying ICWA because it knows or has reason to know a child
is an Indian child as defined in ICWA in accordance with 25 CFR
23.107(b)(2). If the state title IV-E agency indicates ``yes, ICWA
applies,'' then it must complete paragraphs (b)(6)(ii) and (iii) and
new paragraph (i) of this section. In paragraphs (b)(6)(ii) and (iii),
we propose to require that the state title IV-E agency report the date
that the court determined that ICWA applies and the Indian tribe that
the court determined is the Indian child's tribe for ICWA purposes. The
information reported for paragraphs (b)(6) and (4)(iii) and (iv) (as
discussed above) would replace and expand the current data element in
[[Page 13659]]
Sec. 1355.44(b)(5) which only requires reporting whether ICWA applies
and if so, the date the state title IV-E agency was notified that ICWA
applies. Additionally, we propose to require that the state title IV-E
agency report the data elements in new paragraph (i) of this section,
if it reports ``yes, ICWA applies'' in paragraph (b)(6)(i). If the
state title IV-E agency indicates ``no'' or ``unknown'' in paragraph
(b)(6)(i), then the state title IV-E agency must leave new paragraph
(i) blank. This instruction prompts state title IV-E agencies to report
additional information for children to whom ICWA applies in new
paragraph (i) of this section.
Section 1355.44(i) Data Elements Related to ICWA
In new paragraph (i), we propose to obtain information on certain
requirements related to ICWA. This paragraph applies only to state
title IV-E agencies that reported ``yes, ICWA applies'' in paragraph
(b)(6)(i); otherwise, the state title IV-E agency must leave paragraph
(i) blank. Tribal title IV-E agencies do not report information in
paragraph (i). This section is new and is an expansion of the ICWA-
related information state title IV-E agencies are currently required to
report under Sec. 1355.44. The information proposed to be reported
relate to transfers to tribal court, involuntary and voluntary
terminations/modifications or parental rights, active efforts, and
placement preferences under ICWA.
Request to transfer to tribal court. In paragraphs (i)(1)(i) and
(ii), we propose to require the state title IV-E agency to report
whether the child's case record indicated a request to transfer to
tribal court for each removal date reported in Sec. 1355.44(d)(1). If
the state title IV-E agency indicates ``yes,'' it must report whether
the child's case record indicated that there was a denial of the
request to transfer to tribal court in paragraph (i)(1)(ii).
Involuntary termination/modification of parental rights under ICWA.
In paragraph (i)(2), we propose to require that the state title IV-E
agency report information on involuntary terminations or modifications
of parental rights under ICWA. The state title IV-E agency must
complete this paragraph if it indicated ``involuntary'' in Sec.
1355.44(c)(5). In paragraph (i)(2)(i), we propose to require that the
state title IV-E agency indicate whether the state court found beyond a
reasonable doubt that continued custody of the Indian child by the
parent or Indian custodian is likely to result in serious emotional or
physical damage to the Indian child in accordance with 25 U.S.C.
1912(f). In paragraph (i)(2)(ii), we propose to require that the state
title IV-E agency report whether the court decision to involuntarily
terminate parental rights included the testimony of one or more
qualified expert witnesses in accordance with 25 U.S.C. 1912(f). In
paragraph (i)(2)(iii), we propose to require that the state title IV-E
agency report whether, prior to terminating parental rights, the court
concluded that active efforts had been made to prevent the breakup of
the Indian family and that those efforts were unsuccessful in
accordance with 25 U.S.C. 1912(d).
Voluntary termination/modification of parental rights under ICWA.
In paragraph (i)(3), we propose to require the state title IV-E agency
to report information on voluntary terminations or modifications of
parental rights under ICWA. The state title IV-E agency must complete
the information in this paragraph if it indicated the termination of
parental rights was ``voluntary'' in Sec. 1355.44(c)(5). In paragraph
(i)(3)(i) through (iii), we propose, in accordance with 25 CFR 23.125,
that the state title IV-E agency indicate whether the consent to
termination of parental or Indian custodian rights was:
Executed in writing.
Recorded before a court of competent jurisdiction.
Accompanied with a certification by the court that the
terms and consequences of consent were explained on the record in
detail and were fully understood by the parent or Indian custodian in
accordance with 25 CFR 23.125(a) and (c).
The state title IV-E agency must indicate ``yes'' or ``no'' for
each paragraph.
Removals under ICWA. In paragraph (i)(4), we propose to require
that the state title IV-E agency report information on removals under
ICWA, for each date reported in Sec. 1355.44(d)(1). In paragraph
(i)(4)(i), we propose to require the state title IV-E agency to
indicate whether the court order for foster care placement was made as
a result of clear and convincing evidence that continued custody of the
Indian child by the parent or Indian custodian was likely to result in
serious emotional or physical damage to the Indian child in accordance
with 25 U.S.C. 1912(e) and 25 CFR 23.121(a). In paragraph (i)(4)(ii),
we propose to require that the state title IV-E agency indicate whether
the evidence presented for foster care placement, as reported in
paragraph (i)(4)(i), included the testimony of a qualified expert
witness in accordance with 25 U.S.C. 1912(e) and 25 CFR 23.121(a). In
paragraph (i)(4)(iii), we propose to require that the state title IV-E
agency indicate whether the evidence presented for foster care
placement, as reported in paragraph (i)(4)(i), indicates that prior to
each removal date reported in paragraph (d)(1) of this section, active
efforts have been made to prevent the breakup of the Indian family and
that those efforts were unsuccessful in accordance with 25 U.S.C.
1912(d).
Available ICWA foster care and pre-adoptive placement preferences.
In paragraph (i)(5), we propose to require that the state title IV-E
agency report which foster care or pre-adoptive placements (reported in
Sec. 1355.44(e)(1)) that meet the placement preferences of ICWA in 25
U.S.C. 1915(b) and (c) were willing to accept placement for the child,
from a list of five options. The following five options in paragraph
(i)(5)(i) through (v) are: A member of the Indian child's extended
family (as defined in ICWA); a foster home licensed, approved, or
specified by the Indian child's tribe; an Indian foster home licensed
or approved by an authorized non-Indian licensing authority; an
institution for children approved by an Indian tribe or operated by an
Indian organization which has a program suitable to meet the Indian
child's needs; and a placement that complies with the order of
preference for foster care or pre-adoptive placements established by an
Indian child's tribe. The state title IV-E agency must indicate in each
paragraph (i)(5)(i) through (v) ``yes,'' or ``no,'' or ``not
applicable.'' If the Indian child's tribe established a different order
of preference by resolution in accordance with 25 U.S.C. 1915(c), the
state title IV-E agency must complete paragraph (i)(5)(v) and leave
paragraph (i)(5)(i) through (iv) blank.
Foster care and pre-adoptive placement preferences under ICWA. In
paragraph (i)(6), we propose to require that the state title IV-E
agency report whether each of the Indian child's foster care or pre-
adoptive placements (reported in Sec. 1355.44(e)(1)) meet the
placement preferences of ICWA at 25 U.S.C. 1915(b) and (c) by
indicating with whom the Indian child is placed from a list of six
response options: a member of the Indian child's extended family; a
foster home licensed, approved, or specified by the Indian child's
tribe; an Indian foster home licensed or approved by an authorized non-
Indian licensing authority; an institution for children approved by an
Indian tribe or operated by an Indian organization which has a program
suitable to meet the Indian child's needs; placement that complies with
the
[[Page 13660]]
order of preference for foster care or pre-adoptive placements
established by an Indian child's tribe; or placement does not meet ICWA
placement preferences.
Good cause under ICWA and Basis for good cause, foster care. For
placements that do not meet the ICWA placement preferences (reported in
paragraph (i)(6)), we propose to require that the state title IV-E
agency report in paragraph (i)(7) whether the court determined by clear
and convincing evidence, on the record or in writing, a good cause to
depart from the ICWA placement preferences in accordance with 25 U.S.C.
1915(b) or to depart from the placement preferences of the Indian
child's tribe in accordance with 25 U.S.C. 1915(c). If the response is
``yes,'' then the state title IV-E agency must complete paragraph
(i)(8), in which we propose to require that the state title IV-E agency
report the state court's basis for determining good cause to depart
from the ICWA placement preferences. The state title IV-E agency must
indicate ``yes'' or ``no'' in each paragraph (i)(8)(i) through (v):
Request of one or both of the Indian child's parents.
Request of the Indian child.
The unavailability of a suitable placement after a
determination by the court that a diligent search was conducted to find
suitable placements meeting the placement preferences in ICWA at 25
U.S.C. 1915, but none has been located.
The extraordinary physical, mental, or emotional needs of
the Indian child, such as specialized treatment services that may be
unavailable in the community where families who meet the placement
preferences live.
The presence of a sibling attachment that can be
maintained only through a particular placement.
Active efforts. In paragraph (i)(9), we propose to require that the
state title IV-E agency indicate whether it made active efforts to
prevent the breakup of the Indian family in accordance with 25 U.S.C.
1912(d) and 25 CFR 23.2.
Available ICWA adoptive placements. If the state title IV-E agency
indicated the child exited to adoption in Sec. 1355.44(g)(3) Exit
reason, we propose in paragraph (i)(10) to require that the state title
IV-E agency indicate which adoptive placements from a list of four were
willing to accept placement of the child. The following four options in
paragraphs (i)(10)(i) through (iv) are: a member of the Indian child's
extended family; other members of the Indian child's tribe; other
Indian families; a placement that complies with the order of preference
placements established by an Indian child's tribe. If the Indian
child's tribe established a different order of preference by resolution
in accordance with 25 U.S.C. 1915(c), the state title IV-E agency must
complete paragraph (i)(10)(iv) and leave paragraph (i)(10)(i) through
(iii) blank.
Adoption placement preferences under ICWA. If the state title IV-E
agency indicated the child exited to adoption in Sec. 1355.44(g)(3)
Exit reason, we propose to require in paragraph (i)(11) that the state
title IV-E agency indicate whether the child's adoptive placement meets
the adoptive placement preferences of ICWA in 25 U.S.C. 1915(a) or (c)
by indicating with whom the Indian child is placed from a list of the
following five options: a member of the Indian child's extended family;
other members of the Indian child's tribe; other Indian families;
placement that complies with the order of preference for adoptive
placements established by an Indian child's tribe; or placement does
not meet ICWA placement preferences.
Good cause under ICWA and Basis for good cause, adoption. For
placements that do not meet the ICWA placement preferences (as reported
in paragraph (i)(11)), we propose to require that the state title IV-E
agency indicate in paragraph (i)(12) whether the court determined by
clear and convincing evidence, on the record or in writing, a good
cause to depart from the ICWA placement preferences under 25 U.S.C.
1915(a) or to depart from the placement preferences of the Indian
child's tribe under 25 U.S.C. 1915(c). If the response for paragraph
(i)(12) is ``yes,'' then the state title IV-E agency must complete
paragraph (i)(13), in which we propose to require that the state title
IV-E agency report the state court's basis for determining good cause
to depart from the ICWA placement preferences. The state title IV-E
agency must indicate ``yes'' or ``no'' in each paragraph (i)(13)(i)
through (v):
Request of one or both of the child's parents.
Request of the Indian child.
The unavailability of a suitable placement after a
determination by the court that a diligent search was conducted to find
suitable placements meeting the adoptive placement preferences in ICWA
at 25 U.S.C. 1915, but none has been located.
The extraordinary physical, mental, or emotional needs of
the Indian child, such as specialized treatment services that may be
unavailable in the community where families who meet the adoptive
placement preferences live.
The presence of a sibling attachment that can be
maintained only through a particular adoptive placement.
VI. Regulatory Impact Analysis
Regulatory Planning and Review Executive Orders 12866, 13563, and 14094
Executive Orders 12866, 13563, and 14094 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health, and safety effects; distributive impacts; and equity).
Executive Order 13563 is supplemental to, and reaffirms the principles,
structures, and definitions governing regulatory review as established
in Executive Order 12866, emphasizing the importance of quantifying
both costs and benefits, of reducing costs, of harmonizing rules, and
of promoting flexibility. Section 3(f) of Executive Order 12866 defines
``a significant regulatory action'' and was modified by Executive Order
14094 to mean as ``any regulatory action that is likely to result in a
rule that may: (1) have an annual effect on the economy of $200 million
or more . . . 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 impacts of entitlement
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raise novel legal or policy issues for which
centralized review would meaningfully further the President's
priorities, or the principles set forth in the Executive Order, as
specifically authorized in a timely manner by the Administrator of OIRA
in each case''. A regulatory impact analysis must be prepared for rules
determined to be significant regulatory actions within the scope of
section 3(f)(1) of Executive Order 12866. ACF consulted OMB and
determined that this proposed rule meets the criteria for a significant
regulatory action under Executive Order 12866 and was subject to OMB
review.
Costs and Benefits
AFCARS is the only comprehensive case-level data set on the
incidence and experiences of children who are in out-of-home care under
the placement and care of the title IV-E agency or who are
[[Page 13661]]
under a title IV-E adoption or guardianship assistance agreement. The
statute requires that AFCARS provide comprehensive national information
with respect to these children. Collecting robust ICWA-related data
will provide the major benefit of allowing ACF to better understand the
underlying reasons for the disproportionality of AI/AN child
involvement in the child welfare system.\19\
---------------------------------------------------------------------------
\19\ Child Welfare Information Gateway (2021) Child Welfare
Practice to Address Racial Disproportionality and Disparity, https://www.childwelfare.gov/pubs/issue-briefs/racial-disproportionality/.
---------------------------------------------------------------------------
Federal reimbursement under title IV-E will be available for a
portion of the costs that state title IV-E agencies will incur as a
result of the revisions in this proposed rule, depending on each state
title IV-E agency's cost allocation plan, information system, and other
factors. Estimated costs to the Federal Government are provided below
in the Burden estimate section. We estimate the Federal portion of the
overall information collection costs to be $2,216,786.
Alternatives Considered
Federal agencies must justify the need for regulatory action and
consider a range of policy alternatives. We speak to two alternatives
that were considered and rejected.
ACF considered not expanding the ICWA related data
elements in AFCARS. An alternative course of action would be to do
nothing and leave the requirements at Sec. 1355.44 in place because
they were streamlined in the 2020 final rule in response to comments
solicited at that time. We rejected this option because of the reasons
described earlier in the NPRM. Under this alternative, state title IV-E
agencies would continue to report the ICWA-related data required
through the 2020 final rule. However, this information would not be
robust enough to provide the data on AI/AN children needed to
understand their experiences in the foster care system.
ACF also considered the alternative of implementing a
process to monitor ICWA's procedural protections through a case review
outside of AFCARS. We decided against that approach because we believe
that requiring state title IV-E agencies to collect and report
information related to the more detailed aspects of ICWA's procedural
protections via AFCARS is preferable because it will result in
comprehensive national data. AFCARS data is required to be ``reliable
and consistent over time and among jurisdictions through the use of
uniform definitions and methodologies'' and ``provide comprehensive
national information'' for the reporting populations (section 479(c)(2)
and (3) of the Act (42 U.S.C. 679(c)(2) and (3))). The fact that the
statutory penalties for noncompliant AFCARS submissions apply to data
proposed under this NPRM may incentivize agencies to provide timely and
complete data submissions (section 474(f) of the Act (42 U.S.C. 674)).
(Note that agencies are afforded an opportunity to correct and resubmit
noncompliant data files, as outlined in 45 CFR 1355.46.)
Congressional Review
The Congressional Review Act (CRA) allows Congress to review major
rules issued by Federal agencies before the rules take effect (see 5
U.S.C. 801(a)(1)(A)). The CRA defines a ``major rule'' as one that has
resulted, or is likely to result, in (1) an annual effect on the
economy of $100 million or more; (2) a major increase in costs or
prices for consumers; individual industries; Federal, State, or local
government agencies; or geographic regions; or (3) significant adverse
effects on competition, employment, investment, productivity, or
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets
(see 5 U.S.C. chapter 8). OMB's Office of Information and Regulatory
Affairs has determined that this final rule does not meet the criteria
set forth in 5 U.S.C. 804(2).
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 three percent impact on revenue on at least 5 percent of
small entities. However, the Secretary proposes to certify, under 5
U.S.C. 605(b), as enacted by the RFA (Pub. L. 96-354), that this
rulemaking will not result in a significant impact on a substantial
number of small entities. This proposed rule does not affect small
entities because it is applicable only to state title IV-E agencies.
Therefore, an initial regulatory flexibility analysis is not required
for this proposed rule.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) was
enacted to avoid imposing unfunded Federal mandates on state, local,
and tribal governments, or on the private sector. Section 202 of UMRA
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any one year of
$100 million in 1995 dollars, updated annually for inflation. In 2023,
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 2000 requires Federal agencies to determine whether a policy or
regulation may negatively affect family well-being. If the agency
determines a policy or regulation negatively affects family well-being,
then the agency must prepare an impact assessment addressing seven
criteria specified in the law. ACF believes it is not necessary to
prepare a family policymaking assessment (see Pub. L. 105-277) because
the action it takes in this NPRM would not have any impact on the
autonomy or integrity of the family as an institution.
Executive Order 13132
Executive Order 13132 on Federalism requires that Federal agencies
consult with state and local government officials in the development of
regulatory policies with Federalism implications. Consistent with
Executive Order 13132, we specifically solicit comment from State and
local government officials on this proposed rule.
Paperwork Reduction Act
This proposed rule contains information collection requirements
(ICRs) that are subject to review by OMB under the Paperwork Reduction
Act (PRA) of 1995, 44 U.S.C. 3501-3520. PRA of 1995 sought to minimize
government-imposed burden from information collections on the public.
In keeping with the notion that
[[Page 13662]]
government information is an asset, it also is intended to improve the
practical utility, quality, and clarity of information collected,
maintained, and disclosed. The PRA 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)). A
description of the PRA provisions is given in the following paragraphs
with an estimate of the annual burden. To fairly evaluate whether an
information collection should be approved by OMB, the Department
solicits comment on the following issues:
The need for the information collection and its usefulness
in carrying out the proper functions of our agency.
The accuracy of our estimate of the information collection
burden.
The quality, utility, and clarity of the information to be
collected.
Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
Information collection for AFCARS is currently authorized under OMB
number 0980-0267. This proposed rule contains information collection
requirements in proposed Sec. 1355.44 the Out-Of-Home Care Data File
that the Department has submitted to OMB for its review. We propose to
require that state title IV-E agencies report ICWA-related information
for children who are in the Out-of-Home Care Reporting Population
(Sec. 1355.42(a)) for the data elements proposed in Sec. 1355.44(b)
and (i).
Burden Estimate
The following are estimates.
Discussion: ACF estimates the burden and costs associated with this
NPRM using the estimates from the 2020 final rule as a base by which to
estimate the burden of adding the ICWA-related data elements as
proposed in this NPRM. The 2020 final rule estimates can be seen
beginning at 85 FR 28421. Through this comment solicitation, ACF
anticipates further informing the burden estimate for an eventual final
rule. This NPRM has a narrow focus in that we propose to add data
elements related to ICWA's procedural protections applicable only to
state title IV-E agencies. Because ICWA does not apply to tribal title
IV-E agencies, they do not have to report the data elements proposed in
this NPRM, thus they are not included in this burden estimate. ACF
believes that the public comments on this proposal will provide
valuable information regarding the cost and burden to implement the
changes proposed in this NPRM. Specifically, state title IV-E agencies
will be able to consider their cost and burden to implement the current
AFCARS requirements finalized in 2020.
Respondents: The respondents comprise 52 state title IV-E agencies.
Recordkeeping burden: Searching data sources, gathering
information, and entering the information into the system, developing
or modifying procedures and systems to collect, validate, and verify
the information and adjusting existing ways to comply with AFCARS
requirements (including testing), administrative tasks associated with
training personnel on the AFCARS requirements (e.g., reviewing
instructions, developing the training and manuals), and training
personnel on AFCARS requirements. We understand that actual burden
hours and costs will vary due to sophistication and capacity of
information systems and availability of staff and financial resources,
thus this is an average across states. We want to note though, that
regardless of the size of the state's population of children in out-of-
home care to whom ICWA applies, recordkeeping tasks such as training
and modifications to IT systems will still need to occur because the
state must be prepared to report the applicable AFCARS data elements
should a child enter the reporting population.
Reporting burden: Extracting the information for AFCARS reporting
and transmitting the information to ACF, which includes modifying, or
developing a new data file for reporting.
Assumptions for Estimates
We made several assumptions when calculating the burden and costs:
Base Estimated Burden Hours: ACF used the recordkeeping
and reporting burden hours from the 2020 final rule as the base for
estimating the burden hours for state title IV-E agencies resulting
from the additional data elements proposed. The 2020 final rule
estimated 17,076 Recordkeeping and 34 Reporting total annual burden
hours for each title IV-E agency.
Number of children in out-of-home care: To determine the
number of children for which state title IV-E agencies will have to
report the expanded ICWA-related data in the Out-of-Home Care Data File
on average, ACF used the most recent FY 2021 AFCARS data available
(report #29): 206,812 children entered in foster care during FY 2021.
Of those, 4,622 children had a race of AI/AN reported in Sec.
1355.44(b)(7). We used the number of children who entered foster care
rather than the entire population of children in foster care because
agencies will not have to collect and report all data elements on all
children in foster care and using this number allows the estimate to
accommodate those variances between individual child cases and
circumstances.
Additional and Revised Data Elements for State Title IV-E
Agencies: The current Out-of-Home Care Data File contains 186 data
points (see Appendix A of Technical Bulletin #20). ACF proposes to
revise or add in the Out-Of-Home Care Data File approximately 45 data
points related to state title IV-E agencies reporting the expanded
ICWA-related information. This represents revisions to some of the
current ICWA-related data elements to expand information to be reported
in Sec. 1355.44(b)(3) through (6), which is a 5 percent increase in
data points for state title IV-E agencies to report for all children
who enter foster care (10 new data points/186 current data points =
0.05); and proposed new data points to be added in Sec. 1355.44(i),
which is a 19 percent increase in data points for state title IV-E
agencies to report for children to whom ICWA applies (35 new data
points/186 current data points = 0.19). These percent increases in data
points will be used in calculating the reporting and recordkeeping
burden for state title IV-E agencies as a result of this NPRM. We
understand from states during the implementation period of the 2020
final rule and state comments in 2018 and 2019 (see 84 FR 16573 and 85
FR 28411 respectively) that to report the new information related to
ICWA, much work will need to be accomplished to examine paper or
electronic case notes, court records, court orders, and other documents
to locate the needed information and enter it into the case management
system. We also understand that the burden associated with this bullet
will vary across jurisdictions, depending on how robust the agency's
electronic case management system is and the availability of documents.
Systems changes: As of May 2023, 46 state title IV-E
agencies have declared that they are implementing or intend to
implement a Comprehensive Child Welfare Information Systems (CCWIS)
(see 45 CFR 1355.50 et seq. for requirements). ACF recognizes that
state title IV-E agencies will require revisions to electronic case
management systems to meet the requirements proposed in this NPRM,
regardless of CCWIS status. As more title IV-E agencies build CCWIS,
ACF anticipates it will lead to more efficiency in reporting, however,
we understood from previous AFCARS
[[Page 13663]]
rulemakings that the bulk of the information that informs ICWA-related
data elements is located in state agency paper files or court
documents.
Labor rate: ACF assumes that there will be a mix of the
following positions working to meet both the one-time and annual
requirements of this proposed rule. We understand that approximately
half of the state title IV-E agencies will utilize a contract to
implement IT/case management systems changes to comply with an eventual
final rule based on state advance planning documents approved by ACF.
To inform this estimate, we also reviewed 2022 Bureau of Labor
Statistics data for job roles in categories of information technology
(IT) and computer programming, administrative, management, caseworkers,
subject matter experts, and legal staff and used the average hourly
wage for each job role. We used the job roles for social services and
legal staff who may be employed by the child welfare agency and
systems/engineer staff who may be employed by the agency or retained by
a contract to build or revise case management systems. The wages are
described below, and by averaging them, we get a labor rate of $92.
[cir] Office and Administrative Support Occupations (43-0000)
(e.g., administrative assistants, data entry, legal secretaries,
government program eligibility interviewers, information and record
clerks) at $21.90, Social and Community Service Managers (11-9151) at
$38.13, Community and Social Service Operations (21-0000) (e.g., Social
Workers, Child and Family Social Workers, Counselors, Social Service
Specialists) at $26.81, Social Workers (21-1020) at $28.58, Child,
Family, and School Social Workers (21-2021) at $27.25, and Paralegals
and Legal Assistants (23-2011) at $30.21. Computer Information and
Systems Managers (11-3021) at $83.49, Computer and Mathematical
Occupations (15-0000) (e.g., computer and information analysts,
computer programmers, and database and systems administrators) at
$51.99, Information Security Analysts (15-1212) at $57.63, Computer
Hardware Engineers (17-2061) at $67.71, Database Administrators (15-
1242) at $49.29, Database Architects (15-1243) at $65.65, and Computer
Programmers (15-1251) at $49.42. The average labor rate for these wages
is $46 and to account for associated overhead costs, ACF doubled this
rate, which is $92.
Calculations for Estimates
Recordkeeping Burden Estimate for State Title IV-E Agencies: Adding
the burden hours estimated in the bullets below produced a total of
48,183 recordkeeping hours annually, as summarized below.
Searching data sources, gathering information, and
entering the information into the case management system for children
who enter foster care, ACF estimates that this would take on average
44,875 hours annually. The 2020 final rule estimated these tasks to be
4.02 hours annually for each child who entered foster care for all 2020
final rule data points. For this NPRM, the expanded ICWA related
information proposed to be added in:
[cir] Section 1355.44(b)(3) through (6) is a 5 percent increase in
data points to report for all children who enter foster care (4.02 x
0.05 = 0.20 hours). These data points apply to all children who enter
foster care (0.20 hours x 206,812 children = 41,362 hours).
[cir] Section 1355.44(i) is a 19 percent increase in data points to
report for children to whom ICWA applies (4.02 x 0.19 = 0.76 hours). We
are using a child's reported race as AI/AN as a proxy for a child to
whom ICWA applies (0.76 hours x 4,622 children = 3,513 hours).
[cir] The total estimate of searching/gathering/entering
information into the case management system is 48,194 annual burden
hours (41,362 + 3,513 = 44,875).
Developing or modifying standard operating procedures and
IT systems to collect, validate, and verify the information and adjust
existing ways to comply with the AFCARS requirements, and testing is
estimated at 1,608 hours annually. The 2020 final rule estimated 6,700
hours for these tasks for all 2020 final rule data points. For this
NPRM, the expanded ICWA-related information proposed to be added in:
[cir] Section 1355.44(b)(3) through (6) is a 5 percent increase in
data points to report for all children who enter foster care (6,700 x
0.05 = 335 hours).
[cir] Section 1355.44(i) is a 19 percent increase in data points to
report for children to whom ICWA applies (6,700 x 0.19 = 1,273 annual
hours).
The total estimate of modifying IT systems and adjust
existing ways to comply with the NPRM is 1,621 annual burden hours (335
+ 1,273 = 1,608). Administrative tasks associated with training
personnel on the NPRM requirements (e.g., reviewing instructions,
developing training and manuals) and training personnel on the
requirements of this NPRM, we estimate will take on average 1,700
annual burden hours. We understand that training hours will vary
depending on the size of the agency's workforce needing training, the
current training conducted regarding ICWA, therefore ACF assumes that
implementing the data elements proposed here will be incorporated in
ongoing training efforts. The 2020 final rule estimated 7,086 hours for
all 2020 final rule data points. For this NPRM, the information
proposed to be added in:
[cir] Section 1355.44(b)(3) through (6) is a 5 percent increase in
data points to report for all children who enter foster care (7,086 x
0.05 = 354 hours).
[cir] Section 1355.44(i) is a 19 percent increase in data points to
report for children to whom ICWA applies (7,086 x 0.19 = 1,346 hours).
[cir] The total estimate of administrative tasks associated with
training personnel to comply with the NPRM is 1,714 annual burden hours
(354 + 1,346 = 1,700).
Thus, the total recordkeeping burden estimate is 44,875 searching
and gathering information + 1,608 developing or modifying IT systems +
1,700 administrative tasks = 48,183 hours.
Reporting Burden Estimate for State Title IV-E Agencies: We
estimate that extracting the additional ICWA-related information for
AFCARS reporting and transmitting the information to ACF would take on
average eight hours annually. The 2020 final rule estimated reporting
would take 34 hours annually extracting and reporting information for
all 2020 final rule data points. For this NPRM, the expanded ICWA-
related information proposed to be added in:
Section 1355.44(b)(3) through (6) is a 5 percent increase
in data points to report for all children who enter foster care (34 x
0.05 = 2 hours).
Section 1355.44(i) is a 19 percent increase in data points
to report for children to whom ICWA applies (34 x 0.19 = 6 hours).
The total estimate of reporting the expanded ICWA related
information to comply with the NPRM is eight annual burden hours (2 + 6
= 8).
[[Page 13664]]
----------------------------------------------------------------------------------------------------------------
Number of Average Total annual
Collection--AFCARS for State Title IV-E Agencies Number of responses per burden hours burden hours
respondents respondent per response for NPRM
----------------------------------------------------------------------------------------------------------------
Recordkeeping................................... 52 2 463.30 48,183
Reporting....................................... 52 2 0.08 8
---------------------------------------------------------------
Total....................................... .............. .............. .............. 48,191
----------------------------------------------------------------------------------------------------------------
Annualized Cost to the Federal Government
Federal reimbursement under title IV-E will be available for a
portion of the costs that state title IV-E agencies will incur because
of the revisions proposed in this NPRM and actual costs will vary,
depending on each agency's cost allocation, information system, and
other factors. If this proposed regulatory action becomes final, ACF
estimates that it would cost the Federal government approximately
$2,216,786. For this estimate, we used the 50 percent FFP rate and
because the FFP rate used in these estimates is 50 percent, we estimate
the costs for Federal and non-Federal to be the same.
----------------------------------------------------------------------------------------------------------------
Total annual Average hourly Estimate federal
Collection--AFCARS burden hours labor rate Total cost costs (50% FFP)
----------------------------------------------------------------------------------------------------------------
State Title IV-E Agencies
Recordkeeping............................. 48,183 $92 $4,432,836 $2,216,418
Reporting................................. 8 92 736 368
-----------------------------------------------------------------
Total................................. .............. ................ 4,433,572 2,216,786
----------------------------------------------------------------------------------------------------------------
In the above estimates, ACF acknowledges the following: (1) ACF has
used average figures for state title IV-E agencies of very different
sizes and of which, some may have larger populations of children served
than other agencies, and (2) these are rough estimates based on the
information available to ACF. We welcome comments on the burden and
costs of this NPRM in accordance with section IV of this NPRM.
OMB is required to make a decision concerning the collection of
information contained in this regulation between 30 and 60 days after
publication of this document in the Federal Register. Therefore, a
comment is best assured of having its full effect if OMB receives it
within 30 days of publication. This does not affect the deadline for
the public to comment to the Department on the proposed regulations.
Written comments to OMB or the proposed information collection should
be sent directly to the following: Office of Management and Budget,
either by fax to 202-395-6974 or by email to
[email protected]. Please mark faxes and emails to the
attention of the desk officer for ACF.
VII. 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. Similarly, ACF's Tribal
Consultation Policy says that consultation is triggered for a new rule
adoption that significantly affects tribes, 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. Executive Order 13175 does not apply to this
NPRM because it does not impose any burden or cost on tribal title IV-E
agencies, nor does it impact the relationship or distribution of power
between the Federal Government and Indian Tribes. ICWA does not apply
to tribal title IV-E agencies, therefore, they do not have to report
the data elements proposed in this NPRM. However, we have received
tribal input on proposing ICWA-related data elements. Prior to
publication of this NPRM, the Department addressed collecting ICWA-
related information in AFCARS at the Secretary's Tribal Advisory
Council (STAC) meetings in 2022. In September 2022, ACF updated the
STAC of ACF's intention to revise AFCARS to propose ICWA-related data
elements similar to what was in the 2016 final rule. The members of the
STAC have consistently expressed support for restoring ICWA-related
data elements to AFCARS. We look forward to engaging in consultation
with tribes during the comment period of this NPRM and to receiving
their comments on this proposal.
Jeff Hild, Acting Assistant Secretary of the Administration for
Children & Families, approved this document on February 9, 2024.
List of Subjects in 45 CFR Part 1355
Administrative costs, Adoption Assistance, Child welfare, Fiscal
requirements (title IV-E), Grant programs--social programs, Statewide
information systems.
(Catalog of Federal Domestic Assistance Program Number 93.658,
Foster Care Maintenance; 93.659, Adoption Assistance; 93.645, Child
Welfare Services--State Grants).
Dated: February 14, 2024.
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. Amend Sec. 1355.43 by revising paragraphs (b)(1) and (2) and
removing paragraph (b)(3) to read as follows:
Sec. 1355.43 Data reporting requirements.
* * * * *
(b) Out-of-home care data file. A title IV-E agency must report the
[[Page 13665]]
information required in Sec. 1355.44 pertaining to each child in the
out-of-home care reporting population, in accordance with the
following:
(1) The title IV-E agency must report the most recent information
for the applicable data elements in Sec. 1355.44(a), (b), and (c).
(2) The title IV-E agency must report the most recent information
and all historical information for the applicable data elements in
Sec. 1355.44(d) through (i).
* * * * *
0
3. Amend Sec. 1355.44 by revising paragraphs (b)(3) through (6), and
adding paragraph (i) to read as follows:
Sec. 1355.44 Out-of-home care data file elements.
* * * * *
(b) * * *
(3) Researching reason to know a child is an ``Indian Child'' as
defined in the Indian Child Welfare Act (ICWA). For state title IV-E
agencies only: Indicate whether the state title IV-E agency researched
whether there is reason to know that the child is an Indian child as
defined in ICWA. Complete each paragraph (b)(3)(i) through (vi) of this
section.
(i) Indicate whether the state title IV-E agency inquired with the
child's biological or adoptive mother. Indicate ``yes,'' ``no'' or
``the biological or adoptive mother is deceased.''
(ii) Indicate whether the state title IV-E agency inquired with the
child's biological or adoptive father. Indicate ``yes,'' ``no,'' or
``the biological or adoptive father is deceased.''
(iii) Indicate whether the state title IV-E agency inquired with
the child's Indian custodian if the child has one. Indicate ``yes,''
``no,'' or ``child does not have an Indian custodian.''
(iv) Indicate whether the state title IV-E agency inquired with the
child's extended family. Indicate ``yes'' or ``no.''
(v) Indicate whether the state title IV-E agency inquired with the
child. Indicate ``yes'' or ``no.''
(vi) Indicate whether the domicile or residence of the child, the
child's parent, or the child's Indian custodian is on a reservation or
in an Alaska Native village. Indicate ``yes'' or ``no.''
(4) Child's tribal membership and reason to know. For state title
IV-E agencies only:
(i) Indicate whether the child is a member of or eligible for
membership in a federally recognized Indian tribe. Indicate ``yes,''
``no,'' or ``unknown''.
(ii) If the state title IV-E agency indicated ``yes'' in paragraph
(b)(4)(i) of this section, indicate all federally recognized Indian
tribe(s) that may potentially be the Indian child's tribe(s).
(iii) Indicate whether the state title IV-E agency knows or has
reason to know, that the child is an Indian child as defined in ICWA.
Indicate ``yes'' or ``no.'' If the state title IV-E agency indicates
``yes,'' then it must complete paragraph (b)(4)(iv). If the state title
IV-E agency indicates ``no,'' then it must leave paragraph (b)(4)(iv)
blank.
(iv) Indicate the date that the state title IV-E agency first
discovered the information indicating the child is or may be an Indian
child as defined in ICWA.
(5) Notification. For state title IV-E agencies only:
(i) Indicate whether the Indian child's tribe(s) was sent legal
notice prior to the first child custody proceeding in accordance with
25 U.S.C. 1912(a). Indicate ``yes'' or ``no.'' If the state title IV-E
agency indicates ``yes,'' then it must complete paragraph (b)(5)(ii).
If the state title IV-E agency indicates ``no,'' then it must leave
paragraph (b)(5)(ii) blank.
(ii) Indicate the Indian tribe(s) that were sent notice as required
in ICWA at 25 U.S.C. 1912(a).
(iii) Indicate whether the Indian child's parent or Indian
custodian was sent legal notice prior to the first child custody
proceeding in accordance with 25 U.S.C. 1912(a). Indicate ``yes'' or
``no.''
(6) Application of ICWA.
(i) Indicate whether a court determined that ICWA applies or that
the court is applying ICWA because it knows or has reason to know a
child is an Indian child as defined in ICWA in accordance with 25 CFR
23.107(b)(2). Indicate ``yes, ICWA applies,'' ``no, ICWA does not
apply,'' or ``no court determination.'' If the state title IV-E agency
indicates ``yes, ICWA applies,'' then it must complete paragraphs
(b)(6)(ii) and (iii) and paragraph (i) of this section; otherwise leave
blank.
(ii) Indicate the date that the court determined that ICWA applies
or determined to apply ICWA in accordance with 25 CFR 23.107(b)(2).
(iii) Indicate the Indian tribe that the court determined is the
Indian child's tribe for ICWA purposes.
* * * * *
(i) Data elements related to ICWA. Reporting information in
paragraph (i) is for state title IV-E agencies only. Report information
in paragraph (i) only if the state title IV-E agency indicated ``yes,
ICWA applies'' in paragraph (b)(6)(i) of this section. Otherwise, the
state title IV-E agency must leave paragraph (i) of this section blank.
(1) Request to transfer to tribal court.
(i) Indicate whether the child's case record indicated a request to
transfer to tribal court for each removal date reported in paragraph
(d)(1) of this section. Indicate ``yes'' or ``no.'' If the state title
IV-E agency indicates ``yes,'' the state title IV-E agency must
complete paragraph (ii) of this section. If the state title IV-E agency
indicates ``no,'' the state title IV-E agency must leave paragraph (ii)
of this section blank.
(ii) Indicate whether the child's case record indicated that there
was a denial of the request to transfer to tribal court. Indicate
``yes'' or ``no.''
(2) Involuntary termination/modification of parental rights under
ICWA. If the state title IV-E agency indicated ``involuntary'' in
paragraph (c)(5) of this section, the state title IV-E agency must
complete paragraphs (i)(2)(i) through (iii) of this section. Otherwise,
the state title IV-E agency must leave paragraphs (i)(2)(i) through
(iii) of this section blank.
(i) Indicate whether the state court found beyond a reasonable
doubt that continued custody of the Indian child by the parent or
Indian custodian is likely to result in serious emotional or physical
damage to the Indian child in accordance with 25 U.S.C. 1912(f).
Indicate ``yes'' or ``no.''
(ii) Indicate whether the court decision to involuntarily terminate
parental rights included the testimony of one or more qualified expert
witnesses in accordance with 25 U.S.C. 1912(f). Indicate ``yes'' or
``no.''
(iii) Indicate whether, prior to terminating parental rights, the
court concluded that active efforts have been made to prevent the
breakup of the Indian family and that those efforts were unsuccessful
in accordance with 25 U.S.C. 1912(d). Indicate ``yes'' or ``no.''
(3) Voluntary termination/modification of parental rights under
ICWA. If the state title IV-E agency indicated ``voluntary'' in
paragraph (c)(5) of this section, indicate whether the consent to
termination of parental or Indian custodian rights was:
(i) Executed in writing. Indicate ``yes'' or ``no.''
(ii) Recorded before a court of competent jurisdiction. Indicate
``yes'' or ``no.''
(iii) Accompanied with a certification by the court that the terms
and consequences of consent were explained on the record in detail and
were fully understood by the parent or Indian custodian in accordance
with 25 CFR 23.125(a) and (c). Indicate ``yes'' or ``no.''
[[Page 13666]]
(4) Removals under ICWA. For each removal date reported in
paragraph (d)(1) of this section:
(i) Indicate whether the court order for foster care placement was
made as a result of clear and convincing evidence that continued
custody of the Indian child by the parent or Indian custodian was
likely to result in serious emotional or physical damage to the Indian
child in accordance with 25 U.S.C. 1912(e) and 25 CFR 23.121(a).
Indicate ``yes'' or ``no.''
(ii) Indicate whether the evidence presented for foster care
placement as indicated in paragraph (i)(4)(i) of this section included
the testimony of a qualified expert witness in accordance with 25
U.S.C. 1912(e) and 25 CFR 23.121(a). Indicate ``yes'' or ``no.''
(iii) Indicate whether the evidence presented for foster care
placement as indicated in paragraph (i)(4)(i) indicates that prior to
each removal reported in paragraph (d)(1) of this section that active
efforts have been made to prevent the breakup of the Indian family and
that those efforts were unsuccessful in accordance with 25 U.S.C.
1912(d). Indicate ``yes'' or ``no.''
(5) Available ICWA foster care and pre-adoptive placement
preferences. Indicate which foster care or pre-adoptive placements,
(which are reported in paragraph (e)(1) of this section and meet the
placement preferences of ICWA in 25 U.S.C. 1915(b) and (c)) were
willing to accept placement for the child. Indicate in each paragraph
(i)(5)(i) through (v) of this section ``yes,'' ``no,'' or ``not
applicable.'' If the Indian child's tribe established a different order
of preference by resolution in accordance with 25 U.S.C. 1915(c), the
state title IV-E agency must complete paragraph (i)(5)(v) and leave
paragraph (i)(5)(i) through (iv) blank.
(i) A member of the Indian child's extended family.
(ii) A foster home licensed, approved, or specified by the Indian
child's tribe.
(iii) An Indian foster home licensed or approved by an authorized
non-Indian licensing authority.
(iv) An institution for children approved by an Indian tribe or
operated by an Indian organization which has a program suitable to meet
the Indian child's needs.
(v) A placement that complies with the order of preference for
foster care or pre-adoptive placements established by an Indian child's
tribe.
(6) Foster care and pre-adoptive placement preferences under ICWA.
Indicate which foster care or pre-adoptive placements, reported in
paragraph (e)(1) of this section, meet the placement preferences of
ICWA in 25 U.S.C. 1915(b) and (c) by indicating with whom the Indian
child is placed. Indicate ``a member of the Indian child's extended
family,'' ``a foster home licensed, approved, or specified by the
Indian child's tribe,'' ``an Indian foster home licensed or approved by
an authorized non-Indian licensing authority,'' ``an institution for
children approved by an Indian tribe or operated by an Indian
organization which has a program suitable to meet the Indian child's
needs,'' ``a placement that complies with the order of preference for
foster care or pre-adoptive placements established by an Indian child's
tribe'' or ``placement does not meet ICWA placement preferences.'' If
the state IV-E agency indicated ``placement does not meet ICWA
placement preferences,'' then the state IV-E agency must complete
paragraph (i)(7). Otherwise, the state title IV-E agency must leave
paragraph (i)(7) blank.
(7) Good cause under ICWA, foster care. Indicate whether the court
determined by clear and convincing evidence, on the record or in
writing, a good cause to depart from the ICWA placement preferences in
accordance with 25 U.S.C. 1915(b) or to depart from the placement
preferences of the Indian child's tribe in accordance with 25 U.S.C.
1915(c). Indicate ``yes'' or ``no.'' If the state title IV-E agency
indicated ``yes,'' then the state title IV-E agency must indicate the
basis for good cause in paragraph (i)(8) of this section. If the state
title IV-E agency indicated ``no,'' then the state title IV-E agency
must leave paragraph (i)(8) blank.
(8) Basis for good cause, foster care. If the state title IV-E
agency indicated ``yes'' to paragraph (i)(7), indicate the state
court's basis for determining good cause to depart from ICWA placement
preferences by indicating ``yes'' or ``no'' in each paragraph (i)(8)(i)
through (v) of this section:
(i) Request of one or both of the Indian child's parents.
(ii) Request of the Indian child.
(iii) The unavailability of a suitable placement after a
determination by the court that a diligent search was conducted to find
suitable placements meeting the placement preferences in ICWA at 25
U.S.C. 1915 but none has been located.
(iv) The extraordinary physical, mental, or emotional needs of the
Indian child, such as specialized treatment services that may be
unavailable in the community where families who meet the placement
preferences live.
(v) The presence of a sibling attachment that can be maintained
only through a particular placement.
(9) Active efforts. Indicate whether the state title IV-E agency
made active efforts to prevent the breakup of the Indian family in
accordance with 25 U.S.C 1912(d) and 25 CFR 23.2. Indicate ``yes'' or
``no.''
(10) Available ICWA adoptive placements. If the state title IV-E
agency indicated the child exited to adoption in paragraph (g)(3) of
this section, indicate which adoptive placements that meet the
placement preferences in ICWA at 25 U.S.C. 1915(a) and (c) were willing
to accept placement. Indicate in each paragraph (i)(10)(i) through (iv)
of this section ``yes,'' ``no,'' or ``not applicable.'' If the Indian
child's tribe established a different order of preference by resolution
in accordance with 25 U.S.C. 1915(c), the state title IV-E agency must
complete paragraph (i)(10)(iv) and leave paragraph (i)(10)(i) through
(iii) blank.
(i) A member of the Indian child's extended family.
(ii) Other members of the Indian child's tribe.
(iii) Other Indian families.
(iv) A placement that complies with the order of preference
placements established by an Indian child's tribe.
(11) Adoption placement preferences under ICWA. If the state title
IV-E agency indicated the child exited to adoption in paragraph (g)(3)
of this section, indicate whether the adoptive placement meets the
adoptive placement preferences of ICWA in 25 U.S.C. 1915(a) and (c) by
indicating with whom the Indian child is placed. Indicate ``a member of
the Indian child's extended family,'' ``other members of the Indian
child's tribe,'' ``other Indian families,'' ``a placement that complies
with the order of preference for adoptive placements established by an
Indian child's tribe,'' or ``placement does not meet ICWA placement
preferences.'' If the state IV-E agency indicated ``placement does not
meet ICWA placement preferences,'' then the state IV-E agency must
complete paragraph (i)(12); otherwise, leave paragraph (i)(12) blank.
(12) Good cause under ICWA, adoption. If the state title IV-E
agency indicated ``placement does not meet ICWA placement preferences''
in paragraph (i)(11), indicate whether the court determined by clear
and convincing evidence, on the record or in writing, a good cause to
depart from the ICWA adoptive placement preferences under 25 U.S.C.
1915(a) or to depart from the adoptive placement preferences of the
Indian child's tribe
[[Page 13667]]
under 25 U.S.C. 1915(c). Indicate ``yes'' or ``no.'' If the state title
IV-E agency indicated ``yes,'' then the state title IV-E agency must
indicate the basis for good cause in paragraph (i)(13) of this section.
If the state title IV-E agency indicated ``no,'' then the state title
IV-E agency must leave paragraph (i)(13) blank.
(13) Basis for good cause, adoption. If the state title IV-E agency
indicated ``yes'' in paragraph (i)(16), indicate the state court's
basis for determining good cause to depart from ICWA adoptive placement
preferences by indicating ``yes'' or ``no'' in each paragraph
(i)(13)(i) through (v) of this section.
(i) Request of one or both of the child's parents.
(ii) Request of the Indian child.
(iii) The unavailability of a suitable placement after a
determination by the court that a diligent search was conducted to find
suitable placements meeting the adoptive placement preferences in ICWA
at 25 U.S.C. 1915 but none has been located.
(iv) The extraordinary physical, mental, or emotional needs of the
Indian child, such as specialized treatment services that may be
unavailable in the community where families who meet the adoptive
placement preferences live.
(v) The presence of a sibling attachment that can be maintained
only through a particular adoptive placement.
[FR Doc. 2024-03373 Filed 2-22-24; 8:45 am]
BILLING CODE 4184-73-P
