Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 66769 

to voice any concerns related to 

placement when the agency is 

considering a placement in such a 

facility. 

(c) Training and notification 

requirements. In addition to meeting the 

requirements of paragraph (a)(1)(ii) of 

this section, the title IV–E–/IV–B agency 

must: 

(1) Ensure that its employees who 

have responsibility for placing children 

in foster care, making placement 

decisions, or providing services: 

(i) Are trained to implement the 

procedural requirements of this section; 

and 

(ii) Are adequately prepared with the 

appropriate knowledge and skills to 

serve an LGBTQI+ child related to their 

sexual orientation, gender identity, and 

gender expression. 

(2) Ensure that all of its contractors 

and subrecipients who have 

responsibility for placing children in 

foster care, making placement decisions, 

or providing services are informed of 

the procedural requirements to comply 

with this section, including the required 

non-retaliation provisions outlined in 

paragraph (a)(4) of this section. 

(3) Ensure that any placement 

providers who have not chosen to 

become designated as safe and 

appropriate placements for LGBTQI+ 

children are informed of the procedural 

requirements to comply with this 

section, including the required nonretaliation provision outlined in 

paragraph (a)(4) of this section. 

(d) Severability. Any provision of this 

section held to be invalid or 

unenforceable as applied to any person 

or circumstance shall be construed so as 

to continue to give the maximum effect 

to the provision permitted by law, 

including as applied to persons not 

similarly situated or to dissimilar 

circumstances, unless such holding is 

that the provision of this section is 

invalid and unenforceable in all 

circumstances, in which event the 

provision shall be severable from the 

remainder of this section and shall not 

affect the remainder thereof. 

■ 3. In § 1355.34, revise paragraph 

(c)(2)(i) to read as follows: 

§ 1355.34 Criteria for determining 

substantial conformity. 

* * * * * 

(c) * * * 

(2) * * * 

(i) Provide, for each child, a written 

case plan to be developed jointly with 

the child’s parent(s) that includes 

provisions: for placing the child in the 

least restrictive, most family-like 

placement appropriate to his/her needs, 

including placements described in 

§ 1355.22(a)(1), and in close proximity 

to the parents’ home where such 

placement is in the child’s best 

interests; for visits with a child placed 

out of State/Tribal service area at least 

every 12 months by a caseworker of the 

agency or of the agency in the State/ 

Tribal service area where the child is 

placed; and for documentation of the 

steps taken to make and finalize an 

adoptive or other permanent placement 

when the child cannot return home 

(sections 422(b)(8)(A)(ii) and 471(a)(16) 

475(5)(A) of the Act and 

§ 1355.22(a)(1)); 

* * * * * 

[FR Doc. 2023–21274 Filed 9–27–23; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Part 1356 

RIN 0970–AC89 

Foster Care Legal Representation 

AGENCY: Children’s Bureau (CB), 

Administration on Children, Youth and 

Families (ACYF), Administration for 

Children and Families (ACF), 

Department of Health and Human 

Services (HHS). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: ACF proposes to allow a title 

IV–E agency to claim Federal financial 

participation (FFP) for the 

administrative cost of an attorney 

providing: legal representation in foster 

care proceedings of a title IV–E agency 

or any other public agency or tribe that 

has an agreement in effect under which 

the other agency has placement and care 

responsibility of a title IV–E eligible 

child; independent legal representation 

of a child who is either a candidate for 

title IV–E foster care, or in title IV–E 

foster care (hereafter, referred to as a 

child ‘‘who is eligible for title IV–E 

foster care’’), the child’s parent(s), and 

the child’s relative caregiver(s) in foster 

care and other civil legal proceedings 

when such legal representation is found 

necessary by the Secretary to carry out 

the requirements in the title IV–E 

agency’s title IV–E foster care plan; and 

legal representation of an Indian child’s 

tribe, when the child’s tribe intervenes 

in any state court proceeding for the 

foster care placement or termination of 

parental rights of an Indian child who 

is in title IV–E foster care or an Indian 

child who is a candidate for title IV–E 

foster care when such legal 

representation is found necessary by the 

Secretary to carry out the requirements 

in the title IV–E agency’s title IV–E 

foster care plan. 

DATES: In order to be considered, ACF 

must receive written comments on this 

NPRM on or before November 27, 2023. 

ADDRESSES: ACF encourages the public 

to submit comments electronically to 

ensure they are received in a timely 

manner. Please be sure to include 

identifying information on any 

correspondence. To download an 

electronic version of the proposed rule, 

please go to https://

www.regulations.gov/. You may submit 

comments, identified by docket number, 

by any of the following methods: 

• Federal Rulemaking Portal: https:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: CBComments@acf.hhs.gov. 

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. 

FOR FURTHER INFORMATION CONTACT: 

Kathleen McHugh, Director, Policy 

Division, Children’s Bureau, (202) 205– 

8618. Telecommunications Relay users 

may dial 711 first. Email inquiries to 

cbcomments@acf.hhs.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Statutory Authority To Issue NPRM 

II. Background 

III. Section-by-Section Discussion of 

Proposed Regulatory Changes 

IV. Regulatory Process Matters 

V. Tribal Consultation Statement 

I. Statutory Authority 

This NPRM is published under the 

authority granted to the Secretary of 

Health and Human Services (the 

Secretary) by section 1102 of the Social 

Security Act (the Act), 42 U.S.C. 1302. 

Section 1102 of the Act authorizes the 

Secretary to publish regulations, not 

inconsistent with the Act, as may be 

necessary for the efficient 

administration of the functions for 

which the Secretary is responsible 

under the Act. Section 474(a)(3) of the 

Act authorizes Federal reimbursement 

for title IV–E foster care program 

administrative costs, which are defined 

as costs ‘‘found necessary by the 

Secretary for the provision of child 

placement services and for the proper 

and efficient administration of the State 


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66770 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

[title IV–E] plan.’’ This authorization 

applies to an Indian tribe, tribal 

organization, or tribal consortium that 

has an approved title IV–E plan, in the 

same manner as it applies to states. 

II. Background 

Many families that come to the 

attention of a child welfare agency are 

in the midst of or recovering from 

familial, health, housing, or economic 

challenges or crises. These obstacles can 

impede a family’s ability to provide a 

safe and stable environment for their 

children. Access to independent legal 

representation can help stabilize 

families and reduce the need for more 

formal child welfare system 

involvement, including foster care. For 

families with children that have been 

placed in foster care, independent legal 

representation can expedite 

reunification and improve permanency 

or help provide access to needed 

supports for youth transitioning out of 

the child welfare system. For Indian 

children that have been placed in foster 

care, and their families, early 

representation of an Indian child’s tribe 

in foster care proceedings promotes 

stability for the child by minimizing 

unnecessary separation of children and 

their parents, and by maximizing 

placements of the child with extended 

family and other preferred placements. 

The Indian Child Welfare Act (ICWA) 

and regulations allow an Indian child’s 

tribe to intervene in any state court 

proceeding for the foster care placement 

of, or termination of parental rights to, 

an Indian child (25. U.S.C. 1911(c)). 

‘‘Indian child,’’ means any unmarried 

person who is under age eighteen and 

is either a member of an Indian tribe or 

is eligible for membership in an Indian 

tribe and is the biological child of a 

member of an Indian tribe (25 U.S.C. 

1903(4)). An ‘‘Indian child’s tribe’’ 

means the Indian tribe in which an 

Indian child is a member or eligible for 

membership or, in the case of an Indian 

child who is a member of or eligible for 

membership in more than one tribe, the 

Indian tribe with which the Indian child 

has the more significant contacts (25 

U.S.C. 1903(5)). 

The regulation at 45 CFR 1356.60(c) 

details cost-sharing requirements for the 

Federal and non-Federal share of title 

IV–E foster care program expenditures 

for the cost of administrative activities. 

A title IV–E agency may claim FFP at 

the rate of 50 percent for allowable title 

IV–E foster care administrative costs. A 

title IV–E agency may also claim FFP for 

allowable administrative costs incurred 

by any other public agency or tribe 

which has an agreement in effect under 

which the other agency has placement 

and care responsibility of a title IV–E 

eligible child pursuant to 472(a)(2)(B)(ii) 

of the Act. Another ‘‘public agency’’ is 

child placing agency authorized by 

state/tribal law to operate a program of 

services to children and families, with 

supervision by the title IV–E agency 

(CWPM 8.1G #1). Examples of other 

public agencies may be found in section 

G of the Child Welfare Policy Manual, 

and could include the state/tribal 

juvenile justice agency, a court, or state/ 

tribal mental health agency. The 

regulation at § 1356.60(c)(2) provides 

examples of allowable title IV–E foster 

care administrative expenditures that 

are necessary for the administration of 

the title IV–E agency’s plan, such as 

preparation for and participation in 

judicial determinations, referral to 

services, development of the case plan, 

case reviews, and case management and 

supervision. 

ACF policy historically allowed title 

IV–E agencies to claim FFP for the foster 

care administrative costs of 

‘‘preparation for and participation in 

judicial determinations’’ as described in 

§ 1356.60(c)(2)(ii), only for the title IV– 

E agency’s (and if applicable, the tribe 

or other public agency’s) legal 

representation. However, in 2019, ACF 

revised the policy to allow title IV–E 

agencies to also claim FFP for the 

administrative costs of independent 

legal representation provided by 

attorneys representing children who are 

candidates for title IV–E foster care, 

children who are in title IV–E foster care 

(hereafter, ‘‘child who is eligible for title 

IV–E foster care’’ refers to both a child 

who is a candidate and child who is in 

foster care), and the children’s parent(s) 

in all stages of foster care legal 

proceedings (Child Welfare Policy 

Manual [CWPM] 8.1B #30, 31, and 32). 

This policy was revised to ensure that 

reasonable efforts are made to prevent 

removal and finalize the permanency 

plan; and parents and youth are engaged 

in and complying with case plans. A 

‘‘candidate’’ for title IV–E foster care is 

a child who is potentially eligible for 

title IV–E foster care maintenance 

payments and is at serious risk of 

removal from home as evidenced by the 

title IV–E agency either pursuing the 

child’s removal from the home or 

making reasonable efforts to prevent 

such removal (section 472(i) of the Act). 

Further, the agency must document the 

child’s candidacy for title IV–E foster 

care maintenance payments through one 

of the three acceptable methods 

identified in the Child Welfare Policy 

Manual, such as a case plan. (CWPM 

8.1D #2) A child is not considered a 

candidate for title IV–E foster care when 

the title IV–E agency has no formal 

involvement with the child or simply 

because the child has been described as 

‘‘at risk’’ due to circumstances such as 

social or interpersonal problems or a 

dysfunctional home environment 

(CWPM 8.1D). This policy change was 

well received and generated positive 

interest from title IV–E agencies and 

child welfare and legal stakeholders. 

This NPRM proposes to codify and 

expand the policy in CWPM 8.1B #30, 

31, and 32. Recent research, as 

described in the Section-by-Section, 

demonstrates that providing 

independent legal representation early 

in foster care proceedings and other 

civil legal proceedings can help prevent 

children from entering foster care, and 

for youth already in foster care, can 

improve the rate of reunification and 

result in more permanent outcomes for 

the child and the family. Therefore, this 

NPRM proposes that providing 

independent legal representation to a 

child who is eligible for title IV–E foster 

care, their parent(s), and their relative 

caregiver(s) to prepare for and 

participate in civil legal proceedings is 

an allowable administrative cost when 

necessary to carry out the requirements 

in the agency’s title IV–E foster care 

plan in accordance with section 471(a) 

of the Act. 

III. Section-by-Section Discussion of 

Proposed Regulatory Changes 

Section 1356.60 

ACF proposes to revise § 1356.60(c) to 

add a new paragraph (4) providing 

examples of allowable administrative 

costs for legal representation and add a 

new paragraph (c)(2)(xi) to include a 

reference to paragraph (4). 

In a new paragraph (4)(i), we propose 

to clarify that a title IV–E agency may 

claim administrative costs for legal 

representation when incurred by the 

title IV–E agency, or any other public 

agency or tribe that has an agreement 

with the title IV–E agency for placement 

and care responsibility of a title IV–E 

eligible child under section 

472(a)(2)(B)(ii) of the Act in foster care 

proceedings. This proposal is not new 

as regulations currently allow this cost 

under the example of preparing for and 

participating in judicial determinations. 

We are specifying this type of legal 

representation for agency attorneys as a 

separate example of allowable costs and 

to make clear that it encompasses public 

agencies and tribes that have an 

agreement under section 472(a)(2)(B)(ii) 

of the Act with the title IV–E agency. 

In a new paragraph (4)(ii), we propose 

that a title IV–E agency may claim FFP 

for administrative costs of independent 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 66771 

legal representation provided by an 

attorney representing a child who is 

eligible for title IV–E foster care, their 

parent(s), and their relative caregiver(s), 

to prepare for and participate in foster 

care and other civil legal proceedings 

necessary to carry out the requirements 

in the agency’s title IV–E foster care 

plan. We are also proposing that legal 

representation in civil legal proceedings 

may include facilitating, arranging, 

brokering, advocating, or otherwise 

linking clients with providers and 

services as identified in the child’s case 

plan pursuant to section 475(1) of the 

Act. Consistent with Children’s Bureau 

policy, a title IV–E agency may claim 

title IV–E administrative costs of 

paralegals, investigators, peer partners 

or social workers that support an 

attorney providing such independent 

legal representation to the extent that 

they are necessary to support the 

attorney. Under title IV–E of the Act, the 

term ‘‘parent(s)’’ means a biological or 

adoptive parent(s) or legal guardian(s), 

as determined by applicable state or 

tribal law (section 475(2) of the Act). 

The term ‘‘legal guardianship’’ means a 

judicially created relationship between 

child and caretaker (legal guardian) 

which is intended to be permanent and 

self-sustaining as evidenced by the 

transfer to the caretaker of the following 

parental rights with respect to the child: 

protection, education, care and control 

of the person, custody of the person, 

and decision making (section 475(7) of 

the Act). Therefore, this NPRM proposes 

that title IV–E agencies may claim 

allowable administrative costs of 

independent legal representation for a 

legal guardian(s) of a child eligible for 

title IV–E foster care, if state or tribal 

law considers a legal guardian(s) a 

parent(s), and consistent with Federal 

law, such legal guardian(s) is intended 

to be the permanent caretaker of the 

child. 

Under this proposal, title IV–E 

agencies will also be allowed to claim 

administrative costs for independent 

legal representation provided to relative 

caregivers, even when those relative 

caregivers are not a foster child’s legal 

guardian. For purposes of claiming the 

cost of independent legal representation 

provided to the relative caregiver of a 

child who is eligible for title IV–E foster 

care, the title IV–E agency may define 

the term ‘‘relative.’’ For example, a title 

IV–E agency may define relative to 

include kin and ‘‘fictive-kin.’’ 

Finally, in paragraph (c)(2) we 

propose to add a new paragraph (xi) 

referencing the proposed new paragraph 

(4) to clarify that such legal 

representation is an allowable 

administrative cost. 

This NPRM proposes that the title IV– 

E agency may determine what 

‘independent’ means for purposes of 

providing such legal representation. 

However, at a minimum, such legal 

representation should be provided by an 

attorney who: does not have a 

concurrent conflict of interest, such as 

when the representation of one client 

will be directly adverse to the lawyer’s 

responsibilities to another client, a 

former client or a third person; does not 

accept compensation for representing a 

client from someone other than the 

client unless the client gives informed 

consent; and there is no interference 

with the lawyer’s independence of 

professional judgment or with the 

client-lawyer relationship. 

Many families involved in the child 

welfare system encounter barriers to 

accessing services that can help them 

overcome family, health, or economic 

challenges or crises. Such challenges or 

crises may include loss of employment, 

inadequate income, unstable housing or 

homelessness, food insecurity, mental 

health and/or substance misuse 

disorders, and family violence. These 

crises can impede a family’s ability to 

provide a safe and stable environment 

for their children (ACYF–CB–IM–21–02, 

p.2; ACYF–CB–IM–21–06 p. 12), which 

can lead to placement in foster care or 

delayed permanency when the family is 

not prepared for a child to return home. 

For example, of all children that entered 

foster care in Federal fiscal year (FY) 

2021, 63 percent of removals were 

related to neglect (including failure to 

provide adequate food, clothing, shelter, 

and supervision or care by a person who 

is responsible for the child’s welfare). 

Nine percent were experiencing housing 

issues at the time of removal (Adoption 

and Foster Care Analysis and Reporting 

System (AFCARS) FY 2021 Report). In 

2020, a peer-reviewed journal article 

conducted a systematic search of peerreviewed studies conducted in the U.S. 

regarding the association of housing 

stress with child maltreatment. The 

literature indicates indicate that 

‘‘housing stress is associated with an 

increased likelihood of caregiver or 

child self-reported maltreatment, child 

protective services (CPS) reports, 

investigated and substantiated CPS 

reports, out-of-home placements, and 

maltreatment death (Chandler CE, 

Austin AE, Shanahan ME. Association 

of Housing Stress With Child 

Maltreatment: A Systematic Review. 

Trauma Violence Abuse. 2022 

Apr;23(2):639–659. doi: 10.1177/ 

1524838020939136. Epub 2020 Jul 17. 

PMID: 32677550; PMCID: 

PMC7855012). 

Preventing a child from being 

removed from their home is critical to 

a child’s well-being because removal, 

even for a short period of time, exposes 

the child to a range of trauma and stress 

(Sankaran, Vivek. ‘‘Using Preventive 

Legal Advocacy to Keep Children from 

Entering Foster Care.’’ Wm. Mitchell L. 

Rev. 40, (3): 1036–1047, 2014). A child 

who is at risk of entering foster care has 

better outcomes when they remain at 

home compared to when they are placed 

into foster care (Joseph J. Doyle, Jr. 

‘‘Causal Effects of Foster Care: An 

Instrumental Variables Approach.’’ 

Children and Youth Services Review 

35(7): 1143–1151, 2013.). 

Research demonstrates that providing 

independent legal representation in 

foster care and other civil legal 

proceedings can minimize some of these 

barriers that contribute to bringing 

families with children at risk of entering 

foster care in contact with the child 

welfare system and may help prevent 

children from entering foster care 

(Sankaran, Vivek. ‘‘Using Preventive 

Legal Advocacy to Keep Children from 

Entering Foster Care.’’ Wm. Mitchell L. 

Rev. 40, (3): 1036–1047, 2014). One 

recent study showed that when parents 

are represented by an interdisciplinary 

law office with legal specialists to assist 

with immigration, benefits, criminal, 

housing, or other concerns, children 

placed in foster care were safely 

returned to their families about 43 

percent more often in the first year, 

children’s time in foster care was 

reduced by nearly four months, and 

families were no more likely to 

experience a subsequent substantiated 

report of maltreatment (Gerber, Lucas 

A., Pang, Yuk C., Ross, Timothy, 

Guggenheim, Martin, Pecora, Peter J., & 

Miller, Joel. ‘‘Effects of an 

interdisciplinary approach to parental 

representation in child welfare,’’ 

Children and Youth Services Review, 

Volume 102, 2019, Pages 42–55, ISSN 

0190–7409, https://doi.org/10.1016/ 

j.childyouth.2019.04.022). 

Outcome data from legal service 

programs and pilot projects demonstrate 

that providing independent legal 

representation to address a family’s civil 

legal issues results in a high success rate 

for preventing children from entering 

foster care and for children who are in 

foster care, expediting permanency 

(American Bar Association Center on 

Children and the Law & National 

Council of Juvenile and Family Court 

Judges. Supporting Early Legal 

Advocacy before Court Involvement in 

Child Welfare Cases (March, 2021). For 

example: 

• The Detroit Center for Family 

Advocacy conducted a pilot program to 


ddrumheller on DSK120RN23PROD with PROPOSALS1
66772 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

provide independent legal 

representation to address civil legal 

issues for families in which a child has 

been found abused or neglected. 

Typically, lawyers filed for a restraining 

order, drafted a power of attorney, filed 

for a guardianship, applied for public 

benefits, or helped with specialeducation entitlements. Of the 55 

families who were caring for 110 

children served, none of the children 

entered foster care. (Detroit Center for 

Family Advocacy Pilot Evaluation 

report July 2009–June 2012; Sankaran, 

Vivek. Case Closed: Addressing Unmet 

Legal Needs and Stabilizing Families. 

M.L. Raimon, co-author. Center for the 

Study of Social Policy [2014] [Detroit 

model project]) 

• Iowa Legal Aid is piloting an early 

representation program for parents 

before petitions are filed. The program 

assists with private guardianship, 

custody, protective orders, landlord/ 

tenant disputes, and appeals of denials 

of public benefits. Outcome data from 

2018 show the program, in four 

counties, prevented over 100 children 

from becoming court involved (Family 

Justice Initiative. Implementing FJI 

System Attributes, Attribute 4: Timing 

of Appointment, 2020.; Iowa Legal Aid. 

Parent Representation Project, 

undated.). 

• Legal Services of New Jersey has 

operated a pre-petition representation 

program since 2018. The cases are 

referred by the child welfare agency and 

typically involve representation around 

public benefits and access to affordable 

housing, child support and custody 

issues, and school-related issues. 

Outcome data indicate that by 2020, the 

program had prevented 200 removals 

(Implementing FJI System Attributes, 

Attribute 4: Timing of Appointment, 

2020.). 

• The Washington Family 

Intervention Response to Stop Trauma 

Clinic provides pre-petition 

representation to parents of substanceexposed infants. The program often 

works with the parent to identify and 

obtain temporary custody with relatives 

or others. Attorneys also advocate 

around services for parents with 

substance use disorders, including for 

programs that allow continued 

placement of the child with the parent. 

While this is a small and relatively new 

program, initial outcome data suggests 

the majority of the parents working with 

the program can avoid a dependency 

filing and, thus, prevent the removal of 

their children from the home (Family 

Justice Initiative, 2020; Wall, Tonya and 

Adam Ballout. ‘‘Using Legal Services to 

Keep Children in Families: The 

F.I.R.S.T. Clinic.’’ Children’s Rights 

Litigation, October 3, 2019.). 

• The Vermont Parent Representation 

Center provides legal representation in 

civil matters in cases where a child 

faces a significant risk of being removed 

from his or her home. In 78 percent of 

cases, children did not enter foster care. 

In cases in which children entered 

foster care, 50 percent went home to 

their families expeditiously (VPRC’s 

Performance Measures, Vermont Parent 

Representation Center, Inc.) (Why VPRC 

Is Important to Vermont Families, 

Vermont Parent Representation Center, 

Inc.). 

• Children’s Law Center of California 

(CLC) provides pre-court legal advocacy 

to expecting and parenting youth who 

have a dependency case. Case managers 

and attorneys address issues such as 

drug use, child trafficking and 

exploitation, mental health and 

domestic violence. The project has 

successfully prevented filings in cases 

involving domestic violence by 

counseling clients and helping them 

obtain restraining orders once a referral 

was triggered. 

• Legal Aid Services of Oklahoma 

operates an early legal advocacy project. 

In cases where the state will not reunify 

a child in foster care because of 

domestic abuse, attorneys provide legal 

representation in divorce, guardianship 

and landlord tenant issues. The benefit 

of this early advocacy project is that it 

avoids removal of children. 

• In New York, the Bronx Defenders 

provide legal representation for parents 

in abuse and neglect cases in Bronx 

Family Court, advocates for families 

during the child protection investigation 

before a legal case is filed and advises 

pregnant women who are at risk of child 

protection involvement. Attorneys 

advise parents of their rights, 

accompany them to meetings and 

conferences with the Administration for 

Children’s Services, refer them to 

community-based services, and work 

with parents to identify family supports. 

Under the revision proposed in this 

NPRM, we specify that allowable 

administrative costs of an attorney 

providing independent legal 

representation in other civil legal 

proceedings may include facilitating, 

arranging, brokering, advocating, or 

otherwise linking clients with providers 

and services as identified in the child’s 

case plan. For example, a family may 

need to secure safe and stable housing 

to prevent the unnecessary removal of a 

child from the home, or a youth aging 

out of foster care may need access to 

stable housing to finalize a case plan in 

support of their permanency goal as 

required by, respectively, sections 

471(a)(15) and 475(5)(H) of the Act. 

Allowable civil legal representation may 

include preparing for or participating in 

a legal proceeding to advocate with a 

housing authority to help a family or a 

youth aging out of foster care secure a 

housing voucher, appealing a denial of 

a housing voucher, or suing a landlord 

whose housing has unsafe conditions in 

order to execute the child’s case plan. 

Additional examples of legal 

representation in civil legal proceedings 

that may be necessary to carry out the 

title IV–E foster care plan include: 

• An attorney providing independent 

legal representation to an eligible child/ 

parent to prepare for and participate in 

a legal proceeding to establish paternity 

when it is necessary to establish title 

IV–E eligibility or meet the requirement 

for the agency to file for termination of 

parental rights when a child has been in 

foster care for 15 of the most recent 22 

months (section 475(5)(E) of the Act). 

• An attorney providing independent 

legal representation to an eligible child/ 

parent/relative caregiver to prepare for 

and participate in a legal proceeding to 

help a victim of family violence obtain 

an order of protection against the abuser 

to maintain or secure custody of their 

child(ren), secure stable housing, secure 

public benefits, or establish custody or 

guardianship, when it is necessary to 

meet the plan requirement to make 

reasonable efforts to prevent the 

unnecessary removal of a child from the 

home or to finalize a case plan in 

support of a child’s permanency goal as 

required by section 471(a)(15) of the 

Act. 

• An attorney providing independent 

legal representation to an eligible child/ 

parent/relative caregiver to prepare for 

and participate in a legal proceeding to 

enroll a child in school or access 

education records when it is necessary 

to meet plan requirements to ensure the 

educational stability of the child while 

in foster care, taking into account the 

appropriateness of the current 

educational setting and the proximity to 

the school in which the child is enrolled 

at the time of placement in foster care; 

provide a copy of educational records to 

a child at no cost at the time the child 

leaves foster care; and ensure a child is 

enrolled in school per sections 

471(a)(30) and 475(1)(G) and (5)(D) of 

the Act. 

• An attorney providing independent 

legal representation to an eligible child 

to prepare for and participate in a 

proceeding to establish a health care 

power of attorney, health care proxy, or 

other similar document recognized 

under State law when it is necessary to 

meet the requirement to develop a 

transition plan in the 90-day period 


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immediately prior to the date on which 

the child will age out of foster care, per 

section 475(5)(H) of the Act. 

• An attorney providing independent 

legal representation to an eligible child/ 

parent/relative caregiver to prepare for 

and participate in a proceeding to 

resolve inaccuracies in a youth’s credit 

report when it is necessary to meet the 

plan requirement to provide a youth a 

copy of any consumer report each year 

until the child is discharged from care, 

and provide assistance (including, when 

feasible, from any court-appointed 

advocate for the child) in interpreting 

and resolving any inaccuracies in the 

report, per section 475(5)(I) of the Act. 

• An attorney providing independent 

legal representation to an eligible child/ 

parent/relative caregiver to prepare for 

and participate in a proceeding to help 

a child obtain, change, or correct official 

documentation when it is necessary to 

meet the plan requirements to provide 

youth discharged from foster care an 

official or certified copy of the United 

States birth certificate of the child, a 

social security card issued by the 

Commissioner of Social Security, health 

insurance information, a copy of the 

child’s medical records, and a driver’s 

license or identification card issued by 

a State in accordance with the 

requirements of section 202 of the REAL 

ID Act of 2005, and any official 

documentation necessary to prove that 

the child was previously in foster care 

per sections 475(5)(I) and 471(a)(27) of 

the Act. 

• An attorney providing independent 

legal representation to an eligible child/ 

parent/relative caregiver to prepare for 

and participate in a proceeding to help 

a youth aging out of foster care access 

public benefits, housing, health 

insurance, and education when it is 

necessary to meet the plan requirement 

to develop a transition plan 90-days 

immediately prior to the date on which 

the child will age out of foster care, per 

section 475(5)(H) of the Act. 

In a new paragraph (4)(iii), ACF 

proposes that a title IV–E agency with 

placement and care responsibility for an 

Indian child may claim FFP for 

administrative costs of legal 

representation provided by an attorney 

representing an Indian child’s tribe (as 

defined by 25 U.S.C. 1903(5)), when the 

child’s tribe intervenes in any state 

court proceeding for the foster care 

placement or termination of parental 

rights of an Indian child who is in title 

IV–E foster care or an Indian child who 

is a candidate for title IV–E foster care 

when such legal representation is found 

necessary by the Secretary to carry out 

the requirements in the title IV–E 

agency’s title IV–E state plan. The ICWA 

was passed by Congress in 1978 to 

address the long history of failing ‘‘to 

recognize the essential tribal relations of 

Indian people and the cultural and 

social standards prevailing in Indian 

communities and families.’’ (25 U.S.C. 

1901(5)). ICWA protects the ‘‘best 

interests of Indian children and 

promotes 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, and by 

providing for assistance to Indian tribes 

in the operation of child and family 

service programs.’’ (25 U.S.C. 1902). 

As one tribal leader told Congress, 

tribes cannot long survive as ‘‘selfgoverning’’ communities if they cannot 

pass their ‘‘heritage’’ on to the next 

generation. Holyfield at 34 (citation 

omitted). Congress thus recognized that, 

by severing that connection to future 

generations, the breakup of Indian 

families threatens ‘‘the continued 

existence and integrity of Indian tribes.’’ 

25 U.S.C. 1901(3). The Federal 

Government has an interest in ensuring 

that Indian tribes, vested with a 

statutory right to intervene in state 

foster care placement proceedings in 

accordance with 25 U.S.C. 1911(c), have 

legal representation to preserve and 

protect the continued existence and 

integrity of Indian tribes. As the 

Supreme Court noted in a case 

interpreting ICWA, ‘‘Congress [ ] found 

that the breakup of Indian families 

harmed not only Indian children and 

their parents, but also their tribes.’’ 

Mississippi Band of Choctaw Indians v. 

Holyfield, 490 U.S. 30 at 33–34 (1989). 

This proposal supports the goal of 

tribal self-governance by supporting 

Indian families, both by minimizing 

unnecessary separations of Indian 

children from their parents and by 

maximizing their placement with 

extended family, other tribal members, 

or other tribal families when they 

cannot remain with their parents. It is 

well documented that for Indian 

children who have been placed in foster 

care, and their families, early 

representation of an Indian child’s tribe 

in foster care placement proceedings 

promotes stability for the child by 

minimizing unnecessary separation of 

children and their parents, and by 

maximizing placements of the child 

with extended family and other 

preferred placements (Frequently Asked 

Questions Bureau of Indian Affairs Final 

Rule: Indian Child Welfare Act (ICWA) 

Proceedings, June 17, 2016). 

The information provided by the 

tribe’s attorney provides the cultural 

and social standards of the child’s tribe 

that are necessary for the court to make 

essential determinations that reasonable 

efforts were made as required under the 

title IV–E plan. For example, the Act 

requires the court to determine whether 

the agency made reasonable efforts to 

finalize a permanency plan. The tribal 

attorney’s representation of the cultural 

and social standards for family 

connection, reunification and what 

permanency looks like in the child’s 

tribe, may be necessary to finalize the 

permanency plan for an Indian child. 

For example, if adoption is the 

permanency plan for an Indian child, 

the tribal attorney can provide 

information on customary adoption, 

which ensures ‘‘the same stability and 

permanence of traditional adoption 

without terminating parental rights.’’ As 

with all allowable administrative costs, 

it is the option of the title IV–E agency 

with placement and care responsibility 

of the child whether or not to 

implement this option to claim FFP for 

this purpose. 

ACF is making this proposal because 

legal representation provided by an 

attorney to an Indian child’s tribe 

intervening in state court proceedings as 

described above, would be an allowable 

administrative cost necessary for the 

proper and efficient administration of 

the title IV–E plan when it fulfills a 

specific title IV–E plan requirement. 

Such representation also avoids 

unintended consequences adverse to a 

child’s interests, such as loss of tribal 

membership and benefits (ICWA 

Compliance Task Force Report to the 

California Attorney General’s Bureau of 

Children’s Justice. 2017). 

Equity Impact 

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]). Research well-documents the 

overrepresentation of certain racial and 

ethnic groups in foster care relative to 

their representation in the general 

population. African American and 

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 and 

have disparate outcomes. For example, 

they are less likely to reunify with their 

families (Child Welfare Information 

Gateway. (2021). Child welfare practice 


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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/ 

racialdisproportionality/). Access to 

legal representation for an Indian child’s 

tribe promotes equity for those 

historically and adversely affected by 

inequality by minimizing unnecessary 

separation of children and their parents, 

and by maximizing placements of the 

child with extended family, within the 

tribal community, and other preferred 

placements. Research also documents 

the overrepresentation of children and 

parents with disabilities in foster care 

relative to their representation in the 

general population. As many as 60 

percent of children in foster care have 

disabilities. Parents with disabilities are 

more likely than nondisabled parents to 

have child welfare system involvement. 

Children with disabilities are 

institutionalized at higher rates and for 

longer periods of time. Children of 

parents with disabilities have higher 

out-of-home placement than other 

children. Studies have also found 

disabled parents have high rates of 

termination of parental rights (Albert 

SM, Powell RM. Supporting disabled 

parents and their families: perspectives 

and recommendations from parents, 

attorneys, and child welfare 

professionals. J Public Child Welf. 

2020;15(5):529. doi: 10.1080/ 

15548732.2020.1751771. PMID: 

37220548; PMCID: PMC10202498.). 

Access to independent legal 

representation early in foster care and 

other civil legal proceedings necessary 

to carry out the requirements in the 

agency’s title IV–E foster care plan may 

prevent children of color from entering 

foster care. For children in foster care, 

it may increase the rate of reunification 

and provide a quicker timeframe for 

achieving permanency. For young 

adults aging out of foster care, such legal 

representation may provide access to 

services and supports needed to achieve 

permanency and long-term stability. 

This proposed change can also help 

low-income families adversely affected 

by persistent poverty who are struggling 

with unemployment, inadequate 

income, unstable housing, evictions or 

homelessness, and food insecurity when 

confronted with potential removal of a 

child from the home, or when a relative 

is caring for a child in their home. 

According to a 2017 study, 71 percent 

of low-income households experienced 

at least one civil legal problem in the 

previous year, including problems with 

health care, housing conditions, 

disability access, veterans’ benefits, and 

domestic violence. Of the low-income 

households reporting civil legal 

problems, 86 percent received 

inadequate or no legal help; 

(Washington, D.C.: The University of 

Chicago for Legal Services Corporation, 

2017). As previously explained, studies 

also show that when a child is removed 

from the home, having access to legal 

representation not only for child welfare 

proceedings but also for other civil legal 

issues earlier in a case can improve the 

rate of reunification, halve the amount 

of time needed to secure legal 

guardianship or adoption, and result in 

more permanent outcomes for the child 

and the family (Thornton, Elizabeth, & 

Gwin, Betsy. High-Quality Legal 

Representation for Parents in Child 

Welfare Cases Results in Improved 

Outcomes for Families and Potential 

Cost Savings. 46 Fam. L.Q. 139 (2012)). 

That means that parents without 

independent legal representation in 

child welfare proceedings and in other 

civil legal proceedings are at a 

disadvantage in having their children 

returned to them. Therefore, providing 

families adversely affected by poverty 

with independent legal representation 

in foster care and other civil legal 

proceedings necessary to carry out the 

requirements in the agency’s title IV–E 

foster care plan may improve outcomes 

related to reunification and 

permanency. 

In addition, access to legal 

representation for an Indian child’s tribe 

promotes equity for those historically 

and adversely affected by inequality by 

minimizing unnecessary separation of 

children and their parents, and by 

maximizing placements of the child 

with extended family, within the tribal 

community, and other preferred 

placements. 

IV. Regulatory Process Matters 

Regulatory Planning and Review 

Executive Order 12866 and Executive 

Order 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 is supplemental to, 

and reaffirms the principles, structures, 

and definitions governing regulatory 

review as established in E.O. 12866, as 

amended by Executive Order 14094, 

emphasizing the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. Section 3(f) 

of E.O. 12866, as modified by 14094, 

defines ‘‘a significant regulatory action’’ 

as an action that is likely to result in a 

rule (1) having an annual effect on the 

economy of $200 million or more in any 

1 year, or adversely and materially 

affecting a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, and tribal governments or 

communities; (2) creating serious 

inconsistency or otherwise interfering 

with an action taken or planned by 

another agency; (3) materially altering 

the budgetary impacts of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) raising legal or policy 

issues for which centralized review 

would meaningfully further the 

President’s priorities, or the principles 

set forth in the Executive order. This 

proposed rule is a significant rule and 

the Regulatory Impact Analysis for this 

proposed rule identifies economic 

impacts that exceed the threshold for 

significance under section 3(f)(1) of 

Executive Order 12866. The estimated 

cost and transfer impacts of this 

regulatory proposal are provided below. 

As described in the Section-by-Section 

discussion above, providing legal 

representation in foster care proceedings 

and other civil legal proceedings 

minimize barriers that contribute to 

bringing families with children at risk of 

entering foster care in contact with the 

child welfare system and may help 

prevent children from entering foster 

care. For youth already in foster care, 

such legal representation can improve 

the rate of reunification resulting in 

more permanent outcomes for the child 

and the family. For young adults 

transitioning out of foster care, such 

legal representation may provide access 

to services and supports needed to 

achieve permanency and for long-term 

stability. 

Alternatives Considered: In 2019, 

ACF revised the Child Welfare Policy 

Manual to allow title IV–E agencies to 

claim FFP for the administrative costs of 

independent legal representation 

provided by attorneys representing 

children who are candidates for title IV– 

E foster care, children who are in title 

IV–E foster care, and the children’s 

parent(s) in all stages of foster care legal 

proceedings. As an alternative to this 

NPRM, we considered only codifying 

this policy (see CWPM 8.1B #30, 31, and 

32). However, this alternative would not 

meet our goals for two reasons. First, the 

alternative would not allow an agency 

to claim such costs in non-foster care 

civil legal proceedings, meaning that an 


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agency could only continue using state/ 

tribal or local funds for legal 

representation in civil legal 

proceedings. As described in the 

Section-by-Section, allowing 

administrative costs for legal 

representation in civil legal proceedings 

can help prevent children from entering 

foster care, and for youth already in 

foster care, can improve the rate of 

reunification and result in more 

permanent outcomes for the child and 

the family. Second, the alternative 

would only allow independent legal 

representation for the child’s parent(s) 

and not the child’s relative caregiver(s) 

as proposed. However, such legal 

representation for the growing number 

of relative caregivers, who often lack 

advance preparation and struggle with 

similar legal barriers as a parent(s), will 

reduce the need for more formal child 

welfare system involvement. For 

children in foster care, providing legal 

representation to relative caregivers 

would minimize some of the barriers 

that prevent a child from being placed 

with a relative caregiver, enable more 

children to maintain family 

connections, stabilize placements and 

result in more permanent outcomes for 

the child and the family. 

We also considered narrowly defining 

the activities an attorney may perform to 

prepare for and participate in civil legal 

proceedings for which a title IV–E 

agency may claim FFP. However, as 

described in the Section-by-Section, 

legal service programs and pilot projects 

that provided legal representation in a 

wide range of civil legal issues 

demonstrated a high success rate for 

preventing children from entering foster 

care and for children who are in foster 

care, expediting permanency. Therefore, 

the proposal broadens ‘‘preparation for 

and participation in civil legal 

proceedings’’ to include facilitating, 

arranging, brokering, advocating, or 

otherwise linking clients with providers 

and services as identified in the child’s 

case plan. 

We further considered whether the 

statute would permit the proposal to be 

mandatory for title IV–E agencies. 

However, title IV–E does not provide 

authority to require agencies to provide 

such representation or to claim FFP for 

administrative costs. This is because 

title IV–E agencies determine the costs 

necessary to administer the title IV–E 

Foster Care Program, and in turn, 

Federal reimbursement for allowable 

costs is permitted at 50 percent FFP. 

Without this proposal codified, title 

IV–E agencies may continue to claim 

FFP for the administrative costs of 

independent legal representation 

provided by attorneys, representing 

children who are eligible for title IV–E 

foster care, and the children’s parent(s) 

only in foster care legal proceedings. 

Finally, as an alternative to this 

NPRM, we considered continuing to not 

allow title IV–E agencies to claim FFP 

for the administrative cost of 

independent legal representation 

provide by an Indian child’s tribe when 

the tribe intervenes in state court child 

welfare proceedings. However, such 

legal representation promotes stability 

for the child by minimizing unnecessary 

separation of children and their parents, 

and by maximizing placements of the 

child with extended family, tribal 

community, and other preferred 

placements. 

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-forprofit organizations that are 

independently owned and operated and 

are not dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000. HHS 

considers a rule to have a significant 

impact on a substantial number of small 

entities if it has at least a 3 percent 

impact on revenue on at least 5 percent 

of small entities. However, the Secretary 

certifies, under 5 U.S.C. 605(b), as 

enacted by the RFA (Pub. L. 96–354), 

that this 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 and 

tribal title IV–E agencies. Therefore, an 

initial regulatory flexibility analysis is 

not required for this document. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) (Pub. L. 104–4) was 

enacted to avoid imposing unfunded 

Federal mandates on state, local, and 

tribal governments, or on the private 

sector. Section 202 of UMRA requires 

that agencies assess anticipated costs 

and benefits before issuing any rule 

whose mandates require spending in 

any 1 year of $100 million in 1995 

dollars, updated annually for inflation. 

In 2022, that threshold is approximately 

$165 million. This rulemaking 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. 

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 foreignbased enterprises in domestic and 

export markets (see 5 U.S.C. chapter 8). 

Based on our estimates of the impact of 

this rulemaking, the Office of 

Information and Regulatory Affairs 

(OIRA) in OMB anticipates that a final 

rule would be ‘major’ under the CRA. 

Assessment of Federal Regulations and 

Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 requires Federal agencies to 

determine whether a policy or 

regulation may negatively affect family 

well-being. If the agency determines a 

policy or regulation negatively affects 

family well-being, then the agency must 

prepare an impact assessment 

addressing seven criteria specified in 

the law. ACF believes it is not necessary 

to prepare a family policymaking 

assessment, see Public Law 105–277, 

because the action it takes in this NPRM 

will not have any impact on the 

autonomy or integrity of the family as 

an institution. 

Executive Order 13132 

Executive Order 13132 requires 

Federal agencies to consult with state 

and local government officials if they 

develop regulatory policies with 

federalism implications. Federalism is 

rooted in the belief that issues that are 

not national in scope or significance are 

most appropriately addressed by the 

level of government close to the people. 

This rulemaking will not have 

substantial direct impact on the states, 

on the relationship between the Federal 

Government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 


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action does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(Pub. L. 104–13) seeks to minimize 

government-imposed burden from 

information collections on the public. In 

keeping with the notion that 

government information is a valuable 

asset, it also is intended to improve the 

practical utility, quality, and clarity of 

information collected, maintained, and 

disclosed. 

The Paperwork Reduction Act defines 

‘‘information’’ as any statement or 

estimate of fact or opinion, regardless of 

form or format, whether numerical, 

graphic, or narrative form, and whether 

oral or maintained on paper, electronic, 

or other media (5 CFR 1320.3(h)). This 

includes requests for information to be 

sent to the government, such as forms, 

written reports and surveys, 

recordkeeping requirements, and thirdparty or public disclosures (5 CFR 

1320.3(c)). Collection requirements for 

title IV–E foster care administrative 

costs are currently authorized under 

OMB number 0970–0510 and include 

administrative costs for independent 

legal representation. This action does 

not include any new information 

collection requirements or changes to 

existing information collection 

requirements. 

Annualized Cost to the Federal 

Government 

The Federal cost of the NPRM over 

ten fiscal years (2023–2032) is estimated 

to be $2,936,285,160 ($2,099,154,001 

(foster care legal proceedings (FC)) + 

$631,567,527 (civil legal proceedings) + 

$205,563,632 (FC proceedings in which 

an Indian child’s tribe has intervened). 

The combined total for Federal and 

agency costs over ten fiscal years is 

estimated to be $5,872,570,319 

($4,198,308,001 for FC legal proceedings 

+ $1,263,135,054 for civil legal 

proceedings + $411,127,264 for FC 

proceedings in which an Indian child’s 

tribe has intervened). It is optional for 

a title IV–E agency to claim the 

administrative cost of providing 

independent legal representation in 

foster care and civil legal proceedings to 

eligible children, their parents, and their 

relative caregivers, and for legal 

representation to an Indian child’s tribe 

that intervenes in state court 

proceedings for the foster care 

placement and termination of parental 

rights of an eligible child. 

Assumptions: ACF made several 

assumptions when calculating title IV– 

E administrative costs: 

• FY 2021 title IV–E foster care 

administrative cost claims are used as 

the base year amounts for projection 

purposes in this NPRM and were 

sourced from Form CB–496 FC part 1. 

These are actual claims, and not 

estimates. For the purposes of these 

burden estimates, we will use the 

phrase ‘‘candidates’’ to refer to the 

number of children claimed as title IV– 

E candidates and ‘‘IV–E FC’’ for 

children who are in title IV–E foster 

care, the two populations of children 

(and their parents and relative 

caregivers) to which the costs of this 

NPRM apply. 

• AFCARS data provides the number 

of title IV–E eligible children who 

identified as ‘‘American Indian\AK 

Native Alone Or In Combination.’’ We 

assume that this population of children 

is potentially subject to ICWA 

requirements in state court foster care 

placement proceedings. We further 

assume that each such Indian child’s 

tribe will intervene in state court foster 

care placement proceedings. 

• Title IV–E agencies may claim 

reimbursement for 50 percent of the 

administrative costs to provide legal 

representation in foster care 

proceedings, including those in which 

an Indian child’s tribe has intervened in 

state court foster care placement 

proceedings, and civil proceedings, and 

the title IV–E agency must pay its share 

with state or tribal funds. This nonFederal share will be an equal 

percentage of 50 percent because a title 

IV–E agency must match the same 

amount of funds for which it seeks 

Federal reimbursement. 

• We assume an overall annual 1 

percent caseload growth rate in the 

population of candidates for title IV–E 

foster care and IV–E FC for whom title 

IV–E administrative costs will be 

claimed in civil legal proceedings and 

in FC legal proceedings, including those 

in which an Indian child’s tribe has 

intervened in state court foster care 

placement proceedings. This is based on 

current title IV–E budgetary projections. 

• We assume an annual FFP claims 

growth factor of 4.7 percent for FY 2023 

and 2.3 percent from FY 2024 to FY 

2032 for the administrative costs of 

independent legal representation in FC 

and in other civil legal proceedings. 

This is based on current title IV–E 

budgetary projections of the percentage 

of change in title IV–E administrative 

cost claims annually. We assume the 

calculated FY 2021 title IV–E foster care 

administration eligibility rate for 

children classified as American 

Indian\AK Native Alone Or In 

Combination will remain unchanged for 

the ten FY (FYs 2023–2032) project 

period. 

• An implementation level is used in 

the calculations for the chart below as 

an estimated projection for the growth 

in the number of children (either 

directly or on behalf of a parent or 

relative caregivers) receiving 

independent legal representation in 

foster care legal proceedings or civil 

legal proceedings. Similarly, an 

implementation level is used in the 

calculations for the chart below as an 

estimated projection for the growth in 

the number of children whose tribe is 

receiving legal representation in state 

foster care placement and termination of 

parental rights legal proceedings. The 

implementation level is different for the 

cost estimates for foster care legal 

proceedings and civil legal proceedings, 

and state court foster care placement 

legal proceedings in which an Indian 

child’s tribe has intervened as explained 

below: 

Æ For independent legal 

representation in foster care legal 

proceedings, the implementation level 

is measured separately for children who 

are candidates and IV–E FC. The base 

year (FY 2021) implementation levels 

are calculated from Form CB–496 FC 

part 1 which identifies for each title IV– 

E agency on a quarterly basis the 

average monthly number of children 

where independent legal representation 

for foster care proceedings is being 

provided for a candidate or IV–E FC. For 

FY 2021, the independent legal 

representation for foster care 

proceedings implementation level is 

15.4 percent for IV–E FC and 7.9 percent 

for candidates. For FYs 2023–2032, the 

implementation levels are derived from 

the experience observed in the reported 

caseload data between FY 2020 and FY 

2021 where a 24 percent growth rate 

occurred for children in title IV–E foster 

care. We assume that the growth rate 

will peak in the year this NPRM is 

finalized and then gradually diminish as 

more title IV–E agencies take up the 

option to claim for these costs, and more 

children are receiving this 

representation. 

Æ For legal representation by an 

Indian child’s tribe in state court foster 

care placement proceedings a single 

implementation level is measured for 

children who are candidates and in IV– 

E FC. The base year (FY 2021) 

implementation level is set at zero 

percent since Federal funding for this 

service will not be available until this 

NPRM is finalized. Although there is no 

known data on the extent to which we 

anticipate title IV–E agencies will begin 


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providing legal representation by tribes 

to intervene in state court foster care 

placement proceedings, we anticipate 

that this administrative cost will be 

made available to 5 percent of 

potentially eligible children in FY 2023 

and that most of the growth will occur 

in years 2–5 (FYs 2024–2027). In FY 

2027 we anticipate 35 percent of 

potentially eligible tribes will receive 

legal representation. In subsequent FYs, 

the implementation rate growth will 

gradually diminish as more title IV–E 

agencies take up the option to claim for 

these costs, and more children on whose 

behalf a tribe is receiving this 

representation. 

Æ For independent legal 

representation in civil legal 

proceedings, the implementation level 

presumes that administrative cost 

claims will be limited to those children 

on whose behalf independent legal 

representation in foster care legal 

proceedings are claimed. Not all 

children receiving legal representation 

in FC proceedings need representation 

related to civil matters because the 

reasons for child welfare involvement 

vary. Additionally, not all title IV–E 

agencies providing independent legal 

representation in foster care legal 

proceedings will opt to also provide 

such legal representation in civil 

proceedings. We have no estimate for 

FY 2021 costs for legal representation in 

civil legal proceedings as these will be 

new costs as a result of finalizing this 

NPRM. We assume that the proportion 

of children receiving legal 

representation for civil legal 

proceedings (for both candidates and 

IV–E FC) will be derived from among 

those receiving representation for foster 

care legal proceedings. We estimate that 

the civil legal proceedings title IV–E 

caseload will grow gradually each FY 

from 20 percent in FY 2023, to 45 

percent in FY 2027 and up to 56 percent 

in FY 2032 of the children on whose 

behalf representation is also being 

provided for foster care legal 

proceedings. While there is a great deal 

of interest in providing legal 

representation in civil legal 

proceedings, our projections take into 

account that, in most instances, new or 

revised protocols will need to be 

developed with various organizations to 

implement a final rule. There will also 

be a need to secure state or tribal funds 

for the non-Federal share of funding, 

which often requires legislative 

approvals. 

Federal Cost Estimate for Independent 

Legal Representation in Foster Care 

Legal Proceedings 

Here we describe the individual 

calculations by line that are in the 

following chart. All entries in the chart 

and the narrative below are rounded to 

the nearest whole number. The 

calculations to obtain these amounts, 

however, were performed without 

applying rounding to the involved 

factor(s). 

Line 1. National number of children 

(candidates and IV–E FC) receiving legal 

representation in foster care legal 

proceedings. Line 1 of the table below 

provides that the actual number of 

children receiving independent legal 

representation in FC proceedings in FY 

2021 (baseline) was 10,477 candidates 

and 26,092 IV–E FC. Line 1 also 

includes estimates of the annual number 

of children receiving independent legal 

representation in foster care proceedings 

in the following subsequent years: FYs 

2023, 2024, 2025, 2027 and in 2032, the 

estimated number of children is 29,525 

candidates and 73,530 IV–E FC. 

Line 2. National average FFP claim 

per child (candidates and IV–E FC) for 

independent legal representation in 

foster care proceedings. Line 2 of the 

table below displays that in FY 2021, 

the actual average title IV–E 

administrative cost claim per child 

receiving independent legal 

representation in foster care legal 

proceedings was $742 for title IV–E 

candidates and $2,709 for children in 

title IV–E foster care. We also provide 

estimates of the average title IV–E claim 

per child in the following subsequent 

years: FYs 2023, 2024, 2025, 2027 and 

in 2032 the per child average claim is 

estimated at $3,481 (IV–E FC) and $954 

(candidates). 

Line 3. Average FFP claims for 

candidates and children in title IV–E 

foster care for independent legal 

representation in foster care legal 

proceedings. Line 3 of the table below 

displays that in FY 2021, the actual FFP 

for children receiving independent legal 

representation in foster care legal 

proceedings was $7,777,621 for 

candidates and $70,689,345 for children 

in IV–E FC. We also provide estimates 

of the average annual claims for these 

children in the following subsequent 

years: FYs 2023, 2024, 2025, 2027 and 

in 2032 the estimated cost is 

$28,160,009 (candidates) and 

$255,941,062 (IV–E FC). 

Line 4. Total Federal costs for 

independent legal representation in 

foster care legal proceedings 

(candidates and IV–E FC). Line 4 of the 

table below provides that the actual 

total FFP in FY 2021 was $78,466,966, 

which is the sum of the costs of 

independent legal representation in 

foster care legal proceedings for 

candidates and IV–E FC. We also 

provide estimates of the total FFP for 

these costs in the following subsequent 

years: FYs 2023, 2024, 2025, 2027 and 

in 2032 the estimated annual cost is 

$284,101,071. The estimates for these 

subsequent FYs were calculated by 

multiplying line 1 by line 2 for 

candidates and IV–E FC. 

Line 5. Non-Federal costs for 

independent legal representation in 

foster care legal proceedings. Line 5 of 

the table below displays the total FY 

2021 non-Federal costs of independent 

legal representation in foster care 

proceedings for candidates and IV–E FC 

was $78,466,966. This number is the 

same as line 4 because the FFP rate used 

in these estimates is 50 percent, thus we 

estimate the costs for Federal and nonFederal to be the same. We also provide 

estimates of the total non-Federal costs 

of independent legal representation in 

foster care legal proceedings in the 

following subsequent years: FYs 2023, 

2024, 2025, 2027 and in 2032 the 

estimated annual cost is $284,101,071. 

Line 6. Total Federal and non-Federal 

costs of independent legal 

representation in foster care legal 

proceedings. Line 6 of the table below 

is the sum of lines 4 and 5 for the total 

Federal and non-Federal costs of 

independent legal representation in 

foster care legal proceedings for 

candidates and IV–E FC. The total FY 

2021 costs were $156,933,932. We also 

provide estimates of these total Federal 

and non-Federal costs in the following 

subsequent years: FYs 2023, 2024, 2025, 

2027 and in 2032 the estimated annual 

cost is $568,202,142. 

Federal Cost Estimate of Independent 

Legal Representation in Other Civil 

Legal Proceedings 

Line 7. Number of children 

(candidates and IV–E FC) receiving 

independent legal representation in civil 

legal proceedings. Line 7 of the table 

below displays the estimated number of 

children who will receive independent 

legal representation in civil legal 

proceedings either directly, or on behalf 

of a parent or relative caregiver in FY 

2023 as 10,137 children. There is no 

estimate for FY 2021 in the chart 

because these costs were not claimed; 

these will be new costs as a result of 

finalizing this NPRM. We also provide 

estimates for subsequent years: FYs 

2024, 2025, 2027 and in 2032 the 

estimated number of children is 63,482. 

This is based on the implementation 

level which is the percentage of 


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children receiving independent legal 

representation in foster care legal 

proceedings who are projected to also 

receive independent legal 

representation in civil legal proceedings 

in the year. 

Line 8. National average title IV–E 

administrative cost claim per child for 

independent legal representation in civil 

legal proceedings. Line 8 of the table 

below displays that in FY 2021, we 

assumed the average FFP claim per 

child (candidates and IV–E FC) 

receiving independent legal 

representation in civil proceedings to be 

$1,262. We also provide estimates for 

these costs for the following subsequent 

years: FYs 2023, 2024, 2025, 2027 and 

in 2032, we estimate the average FFP 

claim per child to be $1,621. These cost 

estimates were derived from data 

provided by the ‘‘Detroit Model’’ legal 

services program in which legal 

representation in civil issues for child 

welfare clients was calculated as an 

average yearly amount of $2,524 gross 

($1,262 50 percent FFP title IV–E 

Federal share) per client. We used the 

Detroit model project because we do not 

have current title IV–E administrative 

cost claims reported on the Form CB– 

496 for civil proceedings that we can 

use for an estimate of the cost of 

providing independent legal 

representation in civil legal proceedings 

in this NPRM. This is the only program 

model known to us providing civil legal 

representation in pre-petition cases for 

which average cost data is available, 

thus the only way for us to estimate 

these costs (Detroit Center for Family 

Advocacy Pilot Evaluation report July 

2009–June 2012; Sankaran, Vivek. Case 

Closed: Addressing Unmet Legal Needs 

and Stabilizing Families. M.L. Raimon, 

co-author. Center for the Study of Social 

Policy [2014] [Detroit model project]). 

Pursuant to the Uniform 

Administrative Requirements, Cost 

Principles, and Audit Requirements for 

HHS Awards, title IV–E agencies must, 

among other things, ensure costs are 

reasonable (45 CFR 1335.30(i) applying 

45 CFR 75.404). A cost is reasonable if, 

in its nature and amount, it does not 

exceed that which would be incurred by 

a prudent person under the 

circumstances prevailing at the time the 

decision was made to incur the cost. 

The title IV–E agency must describe 

how the administrative costs of 

allowable legal representation are 

allocated in a public assistance cost 

allocation plan that is reviewed and 

approved by HHS (45 CFR 1355.30(k) 

applying 45 CFR 95.507). To the extent 

that a title IV–E agency contracts with 

another public or private agency to 

provide or assist in title IV–E allowable 

activities, the title IV–E agency may 

claim reasonable costs consistent with 

their cost allocation plan and supported 

by a written agreement that, among 

other things, includes the specific 

service(s) being purchased, and the 

basis for billing (45 CFR 95.507(b)(6)). 

Many title IV–E agencies already have 

contracts with attorneys providing 

independent legal representation in 

foster care related hearings on behalf of 

children and their parent(s) where the 

child is either a candidate for or in 

foster care. Such agencies have 

experience identifying reasonable rates 

and appropriate categories of costs for 

allowable legal representation. We 

encourage title IV–E agencies to share 

comments on these experiences. We 

also specifically request comments from 

the public on what a prudent person 

under the circumstances would 

reasonably pay for attorney fees in civil 

legal proceedings. 

Line 9. Federal costs of independent 

legal representation in civil legal 

proceedings. Line 9 of the table below 

provides the estimated Federal 

administrative costs at 50 percent FFP 

for independent legal representation in 

civil legal proceedings for candidates 

and IV–E FC. These costs were 

calculated by multiplying the expected 

average monthly caseload (line 7) by the 

expected average annual claim per child 

(line 8). We provide estimated Federal 

costs of $13,393,972 for FY 2023 and in 

subsequent years: FYs 2024, 2025, 2027 

and in 2032 the estimated Federal cost 

is $102,928,630. 

Line 10. Non-Federal costs of 

independent legal representation in civil 

legal proceedings. Line 10 provides the 

estimated non-Federal share of 

administrative costs for independent 

legal representation in civil legal 

proceedings for candidates and IV–E FC, 

which is 50 percent of the total on line 

11. This number is the same as line 9 

because the FFP rate used in these 

estimates is 50 percent, thus we 

estimate the costs for Federal and nonFderal to be the same. We provide 

estimated non-Federal costs of 

$13,393,972 beginning in FY 2023 and 

in subsequent FYs: 2024, 2025, 2027 

and in 2032 the estimated non-Federal 

cost is $102,928,630. There is no 

estimate for FY 2021 in the chart 

because these costs were not claimed; 

these will be new costs as a result of 

finalizing this NPRM. 

Line 11. Total Federal and nonFederal cost of independent legal 

representation in civil legal proceedings. 

Line 11 displays the annual estimated 

total (Federal + non-Federal) costs for 

independent legal representation for 

candidates and IV–E FC in civil legal 

proceedings. This is the sum of lines 9 

and 10. We estimate these total costs 

beginning in FY 2023 as $26,787,943 

and in subsequent FYs: 2024, 2025, 

2027 and in 2032, the estimate is 

$205,857,260. There is no estimate for 

FY 2021 in the chart because these costs 

were not claimed; these will be new 

costs as a result of finalizing this NPRM. 

Line 12. Number of Indian children 

on whose behalf a tribe may receive 

legal representation in foster care legal 

proceedings (candidates and IV–E FC). 

Line 12 of the table below provides the 

estimated number of Indian children for 

whom legal representation may be 

received by their tribe in FC 

proceedings. In FY 2021 (baseline) 

candidates and IV–E FC are not listed 

since this administrative cost was not 

available. We estimate that the total 

number, beginning in 2023 and 

subsequent FYs 2024, 2025, 2027 and 

2032 is 3,342 for candidates and 7,814 

for IV–E FC. 

Line 13. National average FFP claim 

per child (candidates and IV–E FC) for 

tribal representation in foster care legal 

proceedings. Line 13 of the table below 

provides the average title IV–E claim per 

child for the tribal representation in 

foster care proceedings. In FY 2021 

(baseline), the average title IV–E 

administrative cost claim per child 

receiving legal representation in foster 

care legal proceedings was $1,262 

(estimated) for title IV–E candidates and 

$2,709 (actual) for children in title IV– 

E foster care. We estimate the total per 

child claim for subsequent FYs 2023, 

2024, 2025, 2027, and 2032 is 

$1,621(candidates) and $3,481 (IV–E 

FC). 

Line 14. Average FFP for IV–E FC and 

candidate itemized for tribal 

representation in foster care legal 

proceedings. Line 14 of the table below 

displays estimates for the average 

annual claims for children whose tribe 

is receiving legal representation. In FY 

2021, there was no actual FFP for 

children receiving tribal legal 

representation in foster care legal 

proceedings. For subsequent FYs 2023, 

2024, 2025, 2027 and 2032 the 

estimated cost is $5,419,446 

(candidates) and $27,200,314 (IV–E FC). 

Line 15. Total FFP for tribal 

representation in foster care legal 

proceedings. Line 15 of the table below 

provides the total FFP for tribal 

representation in foster care legal 

proceedings by multiplying line 12 for 

candidates by line 13 for IV–E FC. For 

FY 2021 (base year), there was no actual 

FFP for children receiving tribal legal 

representation in foster care legal 

proceedings. Estimates of the total 

annual FFP for these costs in FYs 2023, 


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2024, 2025, 2027 and 2032 is 

$32,619,760. 

Line 16. Total non-Federal cost for 

tribal representation in foster care legal 

proceedings. Line 16 provides the 

estimated non-Federal share of 

administrative costs for tribal legal 

representation in foster care legal 

proceedings for candidates and IV–E FC 

by multiplying line 1 by line 2, which 

is 50 percent of the total on line 17. This 

number is the same as line 15 because 

the FFP rate used in these estimates is 

50 percent, therefore we estimate the 

costs for Federal and non-Federal to be 

the same. We provide estimated nonFederal costs of $2,641,921 beginning in 

FY 2023 and in subsequent FYs 2024, 

2025, 2027 and 2032, the estimated nonFederal cost is $32,619,760. There is no 

estimate for FY 2021 in the chart 

because these costs were not claimed; 

these will be new costs as a result of 

finalizing this NPRM. 

Line 17. Total cost for foster care legal 

proceedings. Line 17 displays the 

annual estimated total Federal and nonFederal costs for tribal legal 

representation for candidates and IV–E 

FC in foster care legal proceedings. This 

is the sum of lines 15 and 16. We 

estimate these total costs beginning in 

FY 2023 as $5,283,842 and in 

subsequent FYs 2024, 2025, 2027 and 

2032, the estimate is $65,239,520. There 

is no estimate for FY 2021 in the chart 

because these costs were not claimed; 

these will be new costs as a result of 

finalizing this NPRM. 

ACF understands that representation 

for a child’s tribe in foster care legal 

proceedings in practice may not always 

be by an attorney. Some states allow 

non-attorneys to represent a child’s tribe 

if they are a member of and authorized 

to represent the child’s tribe. We are 

considering allowing the cost of a nonattorney to represent a child’s tribe 

when it is necessary for the 

administration of the title IVE plan. We 

are seeking comments on this proposal 

and are especially interested in any 

evidence that non-attorneys would 

effectively provide the information that 

courts need, and any recommendations 

for how ACF would ensure that nonattorneys adequately represent the 

child’s tribe. 

Year 2021 

(Baseline) 2023 2024 2025 2027 (Year 5) 

2032 

(Year 10) 

1. National number of children receiving legal representation in foster 

care legal proceedings (candidates 

and IV–E FC).

10,447 (candidates), 26,092 

(IV–E FC).

13,201 (candidates), 32,876 

(IV–E FC).

15,973 (candidates), 39,779 

(IV–E FC).

19,328 (candidates), 48,133 

(IV–E FC).

24,886 (candidates), 61,976 

(IV–E FC).

29,525 (candidates), 73,530 

(IV–E FC). 

2. National average FFP claim per 

child (candidates and IV–E for foster care legal proceedings.

$742 (candidates), 

$2,709 (IV–E 

FC).

$777 (candidates), 

$2,837 (IV–E 

FC).

$795 (candidates), 

$2,902 (IV–E 

FC).

$813 (candidates), 

$2,969 (IV–E 

FC).

$851 (candidates), 

$3,107 (IV–E 

FC).

$954 (candidates), 

$3,481 (IV–E 

FC). 

3. Average FFP for IV–E FC and candidate itemized for foster care legal 

proceedings.

$7,777,621 (candidates), 

$70,689,345 

(IV–E FC).

$10,260,393 (candidates), 

$93,254,798 

(IV–E FC).

$12,700,622 (candidates), $ 

115,433,586 

(IV–E FC).

$15,721,212 (candidates), 

$142,887,156 

(IV–E FC).

$21,184,501 (candidates), 

$192,541,977 

(IV–E FC).

$28,160,009 (candidates), 

$255,941,062 

(IV–E FC). 

4. Total FFP (line 1 × line 2 for combined IV–E FC child and candidate) 

for foster care legal proceedings.

$78,466,966 ......... $103,515,191 ....... $128,134,209 ....... $158,608,368 ....... $213,726,479 ....... $284,101,071. 

5. Total non-Federal cost (line 1 × line 

2 for combined IV–E FC and candidates) for foster care legal proceedings.

$78,466,966 ......... $103,515,191 ....... $128,134,209 ....... $158,608,368 ....... $213,726,479 ....... $284,101,071. 

6. Total cost for foster care legal proceedings (line 4 + line 5).$156,933,932 ....... $207,030,382 ....... $256,268,417 ....... $317,216,735 ....... $427,452,958 ....... $568,202,142. 

7. Number of children receiving legal 

representation in civil legal proceedings.

N/A ....................... 10,137 .................. 18,398 .................. 25,972 .................. 42,997 .................. 63,482. 

8. National average FFP claim per 

child for civil legal proceedings.

$1,262 (baseline) $1,321 .................. $1,352a ................ $1,383 .................. $1,447 .................. $1,621. 

9. Total FFP for civil legal proceedings (line 7 × line 8).N/A ....................... $13,393,972 ......... $24,869,190 ......... $35,914,468 ......... $62,222,311 ......... $102,928,630. 

10. Total non-Federal costs for civil 

legal proceedings (line 7 × line 8).

N/A ....................... $13,393,972 ......... $24,869,190 ......... $35,914,468 ......... $62,222,311 ......... $102,928,630. 

11. Total Federal + non-Federal costs 

for civil legal proceedings (line 9 + 

line 10).

N/A ....................... $26,787,943 ......... $49,738,380 ......... $71,828,936 ......... $124,444,623 ....... $205,857,260. 

12. Number of children whose tribe 

may receive legal representation in 

foster care legal proceedings (candidates and IV–E FC).

N/A ....................... 332 (candidates), 

777 (IV–E FC).

1,007 (candidates), 2,353 

(IV–E FC).

1,694 (candidates), 3,961 

(IV–E FC).

2,420 (candidates), 5,657 

(IV–E FC).

3,342 (candidates), 7,814 

(IV–E FC). 

13. National average FFP claim per 

child (candidates and IV–E FC) for 

ta tribe in foster care legal proceedings.

N/A ....................... $1,321 (candidates), $ 

2,837 (IV–E FC).

$1,352 (candidates), $ 

2,902 (IV–E FC).

$1,383 (candidates), $ 

2,969 (IV–E FC).

$1,447 (candidates), $ 

3,107 (IV–E FC).

$1,621 (candidates), $ 

3,481 (IV–E 

FC). 

14. Average FFP for IV–E FC and 

candidate itemized for a tribe in foster care legal proceedings.

N/A ....................... $438,929 (candidates), 

$2,202,993 (IV– 

E FC).

$1,360,543 (candidates), 

$6,828,594 (IV– 

E FC).

$2,342,923 (candidates), 

$11,759,180 

(IV–E FC).

$3,501,709 (candidates), 

$17,575,152 

(IV–E FC).

$5,419,446 (candidates), 

$27,200,314 

(IV–E FC). 

15. Total FFP (line 12 × line 13 for 

combined IV–E FC child and candidate) for a tribe in foster care 

legal proceedings.

N/A ....................... $2,641,921 ........... $8,189,137 ........... $14,102,103 ......... $21,076,861 ......... $32,619,760. 

16. Total non-Federal cost (line 12 × 

line 13 for combined IV–E FC and 

candidates) for a tribe in foster care 

legal proceedings.

N/A ....................... $2,641,921 ........... $8,189,137 ........... $14,102,103 ......... $21,076,861 ......... $32,619,760. 

17. Total cost for a tribe in foster care 

legal proceedings (line 15 + line 16).

N/A ....................... $5,283,842 ........... $16,378,274 ......... $28,204,206 ......... $42,153,722 ......... $65,239,520. 


ddrumheller on DSK120RN23PROD with PROPOSALS1
66780 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

Accounting Statement 

From a society-wide perspective, 

many of the effects estimated above are 

transfers. We seek comment on 

estimation of the portion that represents 

new resource use attributable to the 

proposed rule. Preliminarily, as shown 

in the table below, the full amounts are 

categorized as transfers—from either the 

Federal Government or title IV–E 

agencies to title IV–E participants. 

Category Primary estimate 

(millions) 

Units 

Year dollars Discount rate 

(%) 

Period covered 

(years) 

Federal Budget Transfers (annualized) ................................... $119 

98 

2021 

2021 

7 

3 

10 

10 

From/To ................................................................................... From: Federal Government To: children eligible for title IV– 

E foster care 

Other Transfers (annualized) ................................................... 119 

98 

2021 

2021 

7 

3 

10 

10 

From/To ................................................................................... From: Title IV–E agencies To: children eligible for title IV– 

E foster care 

V. Tribal Consultation Statement 

Executive Order 13175 Consultation 

and Coordination With Indian Tribal 

Governments requires agencies to 

consult with Indian tribes when 

regulations have substantial direct 

effects on one or more Indian tribes, on 

the relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes and 

either impose substantial direct 

compliance costs on tribes or preempt 

state law. 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 

final rule does not meet either standard 

for consultation. Since it is the option 

of the tribal title IV–E agency whether 

or not to claim FFP for independent 

legal representation in foster care and 

other civil legal proceedings necessary 

to carry out the requirements in the 

agency’s title IV–E foster care plan, 

Executive Order 13175 does not apply. 

However, we plan to conduct tribal 

consultation during the public comment 

period. We believe that tribes will have 

great interest in our proposal to claim 

FFP for the administrative costs of legal 

representation for an attorney 

representing an Indian child’s tribe 

when the child’s tribe intervenes in 

specified state court proceedings. 

Jeff Hild, Acting Assistant Secretary of 

the Administration for Children & 

Families, approved this document on 

June 13, 2023. 

List of Subjects in 45 CFR Part 1356 

Administrative costs, Adoption and 

foster care, 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: September 21, 2023. 

Xavier Becerra, 

Secretary, Department of Health and Human 

Services. 

For the reasons set forth in the 

preamble, ACF proposes to amend 45 

CFR part 1356 as follows: 

PART 1356—REQUIREMENTS 

APPLICABLE TO TITLE IV–E 

■ 1. The authority citation for part 1356 

continues to read as follows: 

Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 

670 et seq., 42 U.S.C. 1302. 

■ 2. Amend § 1356.60 by revising 

paragraphs (c)(2)(viii) and (x) and 

adding paragraphs (c)(2)(xi) and (c)(4) to 

read as follows: 

§ 1356.60 Fiscal requirements (title IV–E). 

* * * * * 

(c) * * * 

(2) * * * 

(viii) Rate setting; 

* * * * * 

(x) Costs related to data collection and 

reporting; and 

(xi) Costs related to legal 

representation described in paragraph 

(c)(4) of this section. 

* * * * * 

(4) The following are allowable 

administrative costs of legal 

representation: 

(i) Legal representation in foster care 

proceedings provided by an attorney 

representing the title IV–E agency or any 

other public agency which has an 

agreement in effect under which the 

other agency has placement and care 

responsibility of a title IV–E eligible 

child pursuant to 472(a)(2)(B)(ii) of the 

Act; 

(ii) Independent legal representation 

provided by an attorney representing a 

child in title IV–E foster care, a child 

who is a candidate for title IV–E foster 

care, the child’s parent(s), and the 

child’s relative caregiver in foster care 

and other civil legal proceedings as 

necessary to carry out the requirements 

in the agency’s title IV–E foster care 

plan. Independent legal representation 

in civil proceedings includes 

facilitating, arranging, brokering, 

advocating, or otherwise linking clients 

with providers and services as 

identified in the child’s case plan 

pursuant to sections 422, 471(a)(16), and 

475 of the Act; and 

(iii) Legal representation provided by 

an attorney representing an Indian 

child’s tribe (as defined by 25 

U.S.C.1903(5)), when the child’s tribe 

intervenes in any state court proceeding 

for the foster care placement or 

termination of parental rights of an 

Indian child who is in title IV–E foster 

care or an Indian child who is a 

candidate for title IV–E foster care. 

* * * * * 

[FR Doc. 2023–20932 Filed 9–27–23; 8:45 am] 

BILLING CODE P 


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