66752 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Part 1355 

RIN 0970–AD03 

Safe and Appropriate Foster Care 

Placement Requirements for Titles IV– 

E and IV–B 

AGENCY: Children’s Bureau (CB), 

Administration on Children, Youth and 

Families (ACYF), Administration for 

Children and Families (ACF), 

Department of Health and Human 

Services (HHS). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: Federal law requires that state 

and tribal title IV–E/IV–B agencies 

(‘‘agencies’’) ensure that each child in 

foster care receives ‘‘safe and proper’’ 

care and has a case plan that addresses 

the specific needs of the child while in 

foster care to support their health and 

wellbeing. Federal law also requires that 

for children ages 14 and over, agencies 

must consult with them about their case 

plans. To ensure agencies meet these 

and other related statutory 

requirements, ACF proposes to specify 

the steps agencies must take when 

implementing the case plan and case 

review requirements for children in 

foster care who identify as lesbian, gay, 

bisexual, transgender, queer or 

questioning, intersex, as well as 

children who are non-binary, or have 

non-conforming gender identity or 

expression (all of whom are referred to 

under the umbrella term LGBTQI+ for 

purposes of this regulation). 

DATES: In order to be considered, ACF 

must receive written comments on or 

before November 27, 2023. We intend to 

notify tribal title IV–E/IV–B agency 

leadership about the opportunity to 

provide comment on this NPRM no later 

than September 28, 2023. 

ADDRESSES: You may submit comments, 

identified by the Regulatory Information 

Number (RIN), by any of the following 

methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: CBComments@acf.hhs.gov. 

Include the RIN number in subject line 

of the message. 

Instructions: All submissions received 

must include the agency name and RIN 

for this rulemaking. All comments 

received by the methods and due date 

specified above may be posted without 

change to www.regulations.gov, 

including any personal information 

provided. However, the Department 

may redact certain non-substantive 

content from comments before posting, 

including threats, hate speech, 

profanity, graphic images, or 

individually identifiable information 

about a third-party individual other 

than the commenter. In addition, 

comments or material designated as 

confidential or not to be disclosed to the 

public will not be accepted. Comments 

may be redacted or rejected as described 

above without notice to the commenter, 

and the Department will not consider in 

rulemaking any redacted or rejected 

content that would not be made 

available to the public as part of the 

administrative record. 

FOR FURTHER INFORMATION CONTACT: 

Kathleen McHugh, Director, Policy 

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

8618. Telecommunications Relay users 

may dial 711 first. Email inquiries to 

cbcomments@acf.hhs.gov. Upon 

request, the Department will provide an 

accommodation or auxiliary aid to an 

individual with a disability who needs 

assistance to review the comments or 

other documents in the public 

rulemaking record for the proposed 

regulations. To schedule an 

appointment for this type of 

accommodation or auxiliary aid, please 

call (202) 205–8618 for assistance or 

email cbccomment@acf.hhs.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Statutory Authority To Issue NPRM 

II. Background 

III. Overview of Proposal 

IV. Section-by-Section Discussion of 

Proposed Regulatory Changes 

V. Regulatory Process Matters 

VI. Tribal Consultation Statement 

I. Statutory Authority To Issue NPRM 

Titles IV–E and IV–B of the Social 

Security Act (the Act) require title IV– 

E/IV–B agencies (referred to as 

‘‘agencies’’) to provide case plans for all 

children in foster care that include ‘‘a 

plan for assuring that the child receives 

safe and proper care and that services 

are provided to the parents, child, and 

foster parents in order to improve the 

conditions in the parents’ home, 

facilitate return of the child to his own 

safe home or the permanent placement 

of the child, and address the needs of 

the child while in foster care.’’ Section 

475(1)(B). Agencies must also have case 

review systems through which they 

ensure that each foster child’s case plan 

is ‘‘designed to achieve placement in a 

safe setting that is the least restrictive 

(most family like) and most appropriate 

setting available and in close proximity 

to the parents’ home, consistent with 

the best interest and special needs of the 

child[.]’’ Section 475(5). In order to 

receive IV–E and IV–B funds, title IV– 

E/IV–B agencies must have plans 

approved by ACF that provide for case 

plans and case review systems that meet 

these statutory requirements. Section 

471(a)(16) and section 422(b). 

Additionally, in order to receive IV– 

E funds, states and tribes must certify in 

their IV–E plans that they will ensure 

that before a child in foster care is 

placed with prospective foster parents, 

the prospective foster parents ‘‘will be 

prepared adequately with the 

appropriate knowledge and skills to 

provide for the needs of the child . . .’’. 

In addition, the preparation ‘‘shall 

include . . . knowledge and skills 

relating to the developmental stages of 

the cognitive, emotional, physical, and 

behavioral capacities of a child.’’ 

Section 471(a)(24). Agencies must also 

ensure that at least one staff member at 

any child-care institution providing 

foster care receives this training. Section 

471(a)(10). 

The Act authorizes the Secretary of 

Health and Human Services (the 

Secretary) to review state compliance 

with the title IV–E and IV–B program 

requirements. Specifically, the Act 

requires the Secretary to determine 

whether state programs are in 

substantial conformity with state plan 

requirements under IV–E and IV–B, 

implementing regulations promulgated 

by the Secretary, and the states’ 

approved state plans. Section 1123A. 

Section 1102 of the Act authorizes the 

Secretary to publish regulations as may 

be necessary for the efficient 

administration of the functions for 

which the Secretary is responsible 

under the Act. 

II. Background 

Titles IV–E and IV–B of the Act set 

forth numerous requirements for state 

and tribal title IV–E/IV–B agencies 

(referred to as ‘‘agencies’’) to meet for 

children in foster care. This NPRM 

applies to the state or tribal agency 

administering or supervising the 

administration of the title IV–E and title 

IV–B plans. 

Titles IV–E and IV–B of the Act 

provide protections that are designed to 

ensure that while in foster care, children 

receive safe and proper care. As part of 

its title IV–E and IV–B plan, an agency 

must develop a case plan for each child 

in care that, among other things, assures 

that the child receives ‘‘safe and proper’’ 

care, and ‘‘address(es) the needs of the 

child while in foster care.’’ (Title IV–E, 

section 475(1)(B) of the Act). This 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 66753 

1 Institute for Innovation and Implementation at 

University of Maryland’s School of Social Work and 

the National Quality Improvement Center on 

Tailored Services, Placement Stability, and 

Permanency for LGBTQ2S Children and Youth in 

Foster Care (2021), The Cuyahoga Youth Count: A 

Report on LGBTQ+ Youth Experience in Foster 

Care, https://theinstitute.umaryland.edu/media/ 

ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf. 

2Fish, J., Baams, L., Wojciak, A.S., & Russell, S.T. 

(2019), Are Sexual Minority Youth Overrepresented 

in Foster Care, Child Welfare, and Out-of-Home 

Placement? Findings from Nationally 

Representative Data. Child Abuse and Neglect. 

https://www.ncbi.nlm.nih.gov/pmc/articles/ 

PMC7306404/. 

3 Irvine, Angela, and Canfield, Aisha. The 

Overrepresentation of Lesbian, Gay, Bisexual, 

Questioning, Gender Nonconforming and 

Transgender Youth within the Child Welfare to 

Juvenile Justice Crossover Population, 24.2 Am. U. 

J. Gender Soc. Pol’y & L., 243–261 (2016), https:// 

digitalcommons.wcl.american.edu/cgi/ 

viewcontent.cgi?article=1679&context=jgspl. 

4Friedman, M., Marshal, M., Guadamuz, T., Wei, 

C., Wong, C., Saewyc, C., and Stall, R., 2011: A 

Meta-Analysis of Disparities in Childhood Sexual 

Abuse, Parental Physical Abuse, and Peer 

Victimization Among Sexual Minority and Sexual 

Nonminority Individuals American Journal of 

Public Health 101, 1481_1494, https://doi.org/ 

10.2105/AJPH.2009.190009. 

5Pearson, J., Thrane, L., & Wilkinson, L. (2017). 

Consequences of runaway and thrownaway 

experiences for sexual minority health during the 

transition to adulthood. Journal of LGBT Youth, 

14(2), 145–171, https://www.tandfonline.com/doi/ 

full/10.1080/19361653.2016.1264909. 

6For a review of risk factors impacting children 

in foster care see Matarese, M., Greeno, E. and 

Betsinger, A. (2017). Youth with Diverse Sexual 

Orientation, Gender Identity and Expression in 

Child Welfare: A Review of Best Practices. 

Baltimore, MD: Institute for Innovation & 

Implementation, University of Maryland School of 

Social Work, https://qiclgbtq2s.org/wp-content/ 

uploads/sites/6/2018/05/LGBTQ2S-Lit-Review_-5- 

14-18.pdf. 

7The Trevor Project, 2022 National Survey on 

LGBTQ Youth Mental Health, https://

www.thetrevorproject.org/survey-2022/assets/static/ 

trevor01_2022survey_final.pdf. 

8 Ibid. 

9 Ibid. 

10 Innovations Institute, University of Connecticut 

School of Social Work, Family Acceptance Project, 

and National SOGIE Center (n.d.). Parents & 

Families Have a Critical Impact on Their LGBTQ 

Children’s Health Risks & Well-Being [Fact Sheet] 

https://lgbtqfamilyacceptance.org/family-matters/. 

Data for the fact sheet is drawn from Ryan, C (2021) 

Helping Diverse Families Learn to Support Their 

LGBTQ Children to Prevent Health and Mental 

Health Risks and Promote Well-Being, San 

Francisco, Family Acceptance Project, San 

Francisco State University. Available at https://

lgbtqfamilyacceptance.org/wp-content/uploads/ 

2021/11/FAP-Overview_Helping-DiverseFamilies6.pdf and Ryan, C., Huebner, D., Diaz, 

R.M., & Sanchez, J. (2009). Family rejection as a 

predictor of negative health outcomes in white and 

latino lesbian, gay, and bisexual young adults. 

Pediatrics, 123(1), Retrieved from http://

pediatrics.aappublications.org/content/123/1/346. 

11 Ibid. 12Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, 

J. (2009). Family rejection as a predictor of negative 

health outcomes in white and latino lesbian, gay, 

and bisexual young adults. Pediatrics, 123(1), 

Retrieved from http://

pediatrics.aappublications.org/content/123/1/346. 13Ryan, C (2021) Helping Diverse Families Learn 

to Support Their LGBTQ Children to Prevent Health 

Continued 

includes a ‘‘discussion of the 

appropriateness of the services that have 

been provided to the child under the 

plan’’ (Id.). Similarly, the title IV–E/IV– 

B case review system requires that the 

agency have procedures for assuring 

that each child has a case plan designed 

to achieve placements in the most 

appropriate setting available, consistent 

with the best interests and special needs 

of the child (422(b), 471(a)(16), 

475(1)(B), and 475(5)). 

In addition, the Act requires the 

agency to certify that foster parents are 

‘‘prepared adequately with the 

appropriate knowledge and skills to 

provide for the needs of the child [and] 

that the preparation will be continued, 

as necessary, after the placement of the 

child’’ (471(a)(24)). Finally, the Act 

requires agencies to develop and 

implement standards to ensure that 

children in foster care placements are 

provided quality services that protect 

their safety and health (471(a)(22)). 

Overrepresentation of LGBTQI+ 

Children in Foster Care 

LGBTQI+ children are 

overrepresented in the foster care 

population. One recent confidential 

survey revealed that 32 percent 1 of 

foster children ages 12–21 surveyed 

report that they identify as having a 

diverse sexual orientation or gender 

identity. A recent study using nationally 

representative survey data found that 

youth with a minority sexual 

orientation, such as lesbian, gay, and 

bisexual youth, are nearly 2.5 times as 

likely as heterosexual youth to 

experience a foster care placement.2

A study published in 2016 of the 

population of youth who have been 

involved in both the foster care and 

juvenile justice systems found that 

LGBTQI+ juvenile-justice involved 

youth were much more likely to have 

been removed from their home and to 

have experienced being physically 

abused.3

LGBTQI+ youth are overrepresented 

in the child welfare system because of 

a confluence of factors. Studies suggest 

that many LGBTQI+ youth face higher 

rates of parental physical abuse,4 and 

are more likely to run away from home 

or be kicked out, often because of 

conflict over their sexual orientation or 

gender identity.5 These experiences 

place LGBTQI+ youth at greater risk of 

entering foster care, and mean that 

many LGBTQI+ youth enter foster care 

with complex needs and trauma related 

to the discrimination and stigma they 

have experienced because of their 

sexual orientation or gender identity.6

Impact of Family and Caregiver 

Behavior on LGBTQI+ Youth Wellbeing 

Research shows that the treatment 

LGBTQI+ youth receive from their 

families and caregivers related to their 

sexual orientation or gender identity is 

highly predictive of their mental health 

and wellbeing. For example, a 2021 

survey 7 found that ‘‘LGBTQ youth who 

felt high social support from their 

family reported attempting suicide at 

less than half the rate of those who felt 

low or moderate social support. 

Moreover, the survey 8 found the five 

most common ways that LGBTQ youth 

reported feeling supported by their 

parents or caregivers included having 

been welcoming to their LGBTQ friends 

or partners, talking with them 

respectfully about their LGBTQ identity, 

using their name and pronouns 

correctly, supporting their gender 

expression, and educating themselves 

about LGBTQ people and issues.9

Another study further quantified the 

negative impacts of family rejection of 

LGBTQI+ children, which can lead to 

greater representation in foster care. The 

study found that family behaviors, 

including excluding LGBTQI+ children 

from family events and activities 

because of their identity and not letting 

their child learn about their LGBTQI+ 

identity, that tried to change their 

child’s LGBTQ identity increased the 

risk of depression, suicide, illegal drug 

use and other serious health risks.10 The 

study also found that family behaviors 

that support LGBTQI+ children 

including by standing up for their child 

when others mistreat them because of 

their LGBTQI+ identity had positive 

outcomes, helped promote self-esteem, 

overall health, and protected against 

suicidal behavior, depression and 

substance abuse.11 The study found that 

LGB young adults who reported high 

levels of family rejection during 

adolescence were more than eight times 

more likely to report having attempted 

suicide, nearly six times more likely to 

report high levels of depression, and 

more than three times more likely to use 

illegal drugs compared with their LGB 

counterparts from families that reported 

no or low levels of family rejection.12

Moreover, rejecting caregiver behavior— 

including refusing to use a child’s 

chosen name and pronouns, ridiculing 

or name-calling because of the child’s 

LGBTQI+ identity, or isolating 

behaviors such as blocking access to 

LGBTQI+ friends, events, and 

resources—contributes to higher rates of 

health and mental health problems.13


ddrumheller on DSK120RN23PROD with PROPOSALS1
66754 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

and Mental Health Risks and Promote Well-Being, 

San Francisco, Family Acceptance Project, San 

Francisco State University. Available at https://

lgbtqfamilyacceptance.org/wp-content/uploads/ 

2021/11/FAP-Overview_Helping-DiverseFamilies6.pdf. 

14 Ibid. 

15McCormick, A., Schmidt, K., and Terrazas, S. 

(2017) LGBTQ Youth in the Child Welfare System: 

An Overview of Research, Practice, and Policy, 

Journal of Public Child Welfare, 11:1, 27–39, DOI: 

10.1080/15548732.2016.1221368, https://doi.org/ 

10.1080/15548732.2016.1221368. 

16Wilson, Cooper, Kastanis & Nezhad (2014). 

17 Jeffrey Poirier, Jim Casey Youth Opportunities 

Initiative: Experiences and Outcomes of Youth Who 

Are LGBTQ, 96.1 Child Welfare, 1–26 (2018), 

https://www.proquest.com/docview/2056448464. 

18Wilson, B.D.M., & Kastanis, A.A. (2015). Sexual 

and gender minority disproportionality and 

disparities in child welfare: A population-based 

study. Children and Youth Services Review, 58, 11– 

17, and Bianca D.M. Wilson, Angeliki A. Kastanis, 

Sexual and gender minority disproportionality and 

disparities in child welfare: A population-based 

study, Children and Youth Services Review, 

Volume 58, 2015, Pages 11–17, ISSN 0190–7409, 

https://doi.org/10.1016/j.childyouth.2015.08.016. 

19Matarese, M., Greeno, E., Weeks, A., 

Hammond, P. (2021). The Cuyahoga youth count: A 

report on LGBTQ+ youth’s experience in foster care. 

Baltimore, MD: The Institute for Innovation & 

Implementation, University of Maryland School of 

Social Work. https://theinstitute.umaryland.edu/ 

media/ssw/institute/Cuyahoga-YouthCount.6.8.1.pdf. 

20 Jeffrey Poirier, Jim Casey Youth Opportunities 

Initiative: Experiences and Outcomes of Youth Who 

Are LGBTQ, 96.1 Child Welfare, 1–26 (2018), 

https://www.proquest.com/docview/2056448464. 

21Wilson, B.D.M., Cooper, K., Kastanis, A., & 

Nezhad, S. (2014), Sexual and Gender Minority 

Youth in Foster care: Assessing Disproportionality 

and Disparities in Los Angeles, The Williams 

Institute, UCLA School of Law https://

williamsinstitute.law.ucla.edu/wp-content/uploads/ 

SGM-Youth-in-Foster-Care-Aug-2014.pdf. 

22 Ibid. 

23Baams, Laura., Stephen T. Russell, and Bianca 

D.M. Wilson. LGBTQ Youth in Unstable Housing 

and Foster Care, American Academy of Pediatrics, 

Volume 143, Issue 3, March 2019. https://doi.org/ 

10.1542/peds.2017-4211. 

24 DeChants, J.P., Green, A.E., Price, M.N, & Davis, 

C.K. (2021), Homelessness and Housing Instability 

Among LGBTQ Youth, West Hollywood, CA, The 

Trevor Project, https://www.thetrevorproject.org/ 

wp-content/uploads/2022/02/Trevor-ProjectHomelessness-Report.pdf; Dworsky, A, 2013. ‘‘The 

Economic Well-Being of Lesbian, Gay, and Bisexual 

Youth Transitioning Out of Foster Care,’’ 

Mathematica Policy Research Reports Mathematica 

Policy Research, https://www.acf.hhs.gov/sites/ 

default/files/documents/opre/opre_lgbt_brief_01_

04_2013.pdf. 

25For a review of best practices for child welfare 

practitioners, see Matarese, M., Greeno, E. and 

Betsinger, A. (2017). Youth with Diverse Sexual 

Orientation, Gender Identity and Expression in 

Child Welfare: A Review of Best Practices. 

Baltimore, MD: Institute for Innovation & 

Implementation, University of Maryland School of 

Social Work. https://qiclgbtq2s.org/wp-content/ 

uploads/sites/6/2018/05/LGBTQ2S-Lit-Review_-5- 

14-18.pdf. 

26Substance Abuse and Mental Health Services 

Administration (SAMHSA): Moving Beyond Change 

Efforts: Evidence and Action to Support and Affirm 

LGBTQI+ Youth. SAMHSA Publication No. PEP22– 

03–12–001. Rockville, MD: Center for Substance 

Abuse Prevention. Substance Abuse and Mental 

Health Services Administration, 2023. https://

store.samhsa.gov/sites/default/files/pep22-03-12- 

001.pdf. 

27The Trevor Project, The Trevor Project 

Research Brief: LGBTQ Youth with a History of 

Foster Care (2021), https://

www.thetrevorproject.org/wp-content/uploads/ 

2021/07/LGBTQ-Youth-with-a-History-of-FosterCare_-May-2021.pdf. 

28The Trevor Project, The Trevor Project 

Research Brief: LGBTQ Youth with a History of 

Foster Care (2021), https://

www.thetrevorproject.org/wp-content/uploads/ 

2021/07/LGBTQ-Youth-with-a-History-of-FosterCare_-May-2021.pdf. 

Conversely, the study found improved 

health outcomes in youth whose 

caregivers demonstrated supportive 

behavior towards the child’s LGBTQI+ 

identity, including connecting the child 

to an LGBTQI+ adult role model.14

Experience of LGBTQI+ Children in 

Foster Care 

A meaningful body of research 

demonstrates that LGBTQI+ children in 

foster care face disproportionately worse 

outcomes and experiences than other 

children in foster care due to their 

specific health and well-being needs are 

often unmet. LGBTQI+ youth in foster 

care report experiencing mistreatment 

related to their sexual orientation or 

gender identity. One study 15 found that, 

‘‘one of the most consistent themes that 

LGBTQ youth have conveyed in focus 

groups and qualitative interviews is a 

tendency to be harassed, teased, and 

bullied by staff, peers, and care 

providers . . . LGBTQ youth are often 

excluded and rejected by their peers and 

caretakers . . . It is common for LGBTQ 

youth in group home and foster home 

settings to be isolated to their own 

bedroom or to their own wing of the 

house due to fears of placing them with 

youth of the same sex.’’ 

Children in foster care who identify as 

LGBTQI+ are more likely to be placed 

in congregate care settings (group homes 

and residential care), experience 

multiple placements, and have adverse 

experiences in their placement than 

non-LGBTQI+-identifying youth.16 One 

study found that LGBTQI+ youth in 

foster care are more likely to experience 

at least 10 foster care placements, with 

youth of color who are LGBTQ reporting 

the highest rates.17 Moreover, older 

children identifying as LGBTQI+ in 

foster care report less satisfaction with 

their child welfare experience and had 

higher rates of negative outcomes, 

including emotional distress, greater 

rates of homelessness, and more 

placements.18

Children in foster care who identify as 

LGBTQI+ report a perception of poor 

treatment by the foster care system more 

frequently than their non-LGBTQI+ 

counterparts, and feel less frequently 

that they can be themselves.19 Children 

in foster care who identify as LGBTQI+ 

are less likely to report at least ‘‘good’’ 

physical and mental health, and are less 

likely to have at least one supportive 

adult on whom they can rely for advice 

or guidance, than their non-LGBTQI+ 

counterparts in foster care.20

In one study that looked at LGBTQI+ 

status-related discrimination, 37.7 

percent of children in foster care ages 12 

through 21 who identify as 

LGBTQI+-reported poor treatment 

connected to their gender expression, 

sexual minority status, or transgender 

status.21 The study also showed that 

LGBTQI+ foster youth were more likely 

than their non-LGBTQI+ foster youth 

counterparts to have been hospitalized 

for emotional reasons or been homeless 

at some point in their life.22 Youth in 

foster care identifying as LGBTQI+ have 

also reported more fights in school and 

more mental health problems compared 

with their non-LGBTQI+ counterparts.23

Research has also demonstrated 

correlations between LGBTQI+ children 

who spent time in foster care and who 

later experienced housing instability, 

homelessness, and food insecurity.24

These many findings illustrate the 

need for child welfare personnel and 

foster parents to be educated and 

trained on their critical role in the lives 

of LGBTQI+ youth to avoid retraumatization and further victimization 

of youth.25 Implementing strategic foster 

parent training and recruitment to meet 

the well-being needs of children who 

are LGBTQI+ is critical. 

Mental Health Needs of LGBTQI+ Youth 

Research consistently shows that 

when LGBTQI+ youth experience 

supportive environments and services, 

they experience the same positive 

mental health outcomes as other 

youth.26 However, research 

demonstrates that LGBTQI+ youth in 

foster care face significant mental health 

disparities that result from experiences 

of stigma and discrimination. A 2020 

survey found that LGBTQI+ youth in 

foster care were 2.6 times more likely to 

report a past year suicide attempt than 

LGBTQI+ youth who were not in foster 

care, with 35 percent of LGBTQI+ foster 

youth reporting such an attempt.27

Reports of past year suicide attempt 

rates were even higher among LGBTQI+ 

foster youth of color (38 percent) and 

non-binary and transgender foster youth 

(45 percent).28 Additionally, two child 

welfare agency studies showed that 

foster youth who identified as LGBTQI+ 

were more likely to be hospitalized for 

emotional reasons compared to nonVerDate Sep<11>2014 17:14 Sep 27, 2023 Jkt 259001 PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 E:\FR\FM\28SEP1.SGM 28SEP1

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29Wilson, B.D.M., Cooper, K., Kastanis, A., & 

Nezhad, S. (2014), Sexual and Gender Minority 

Youth in Foster care: Assessing Disproportionality 

and Disparities in Los Angeles. Los Angeles, The 

Williams Institute, UCLA School of Law. Also see 

Institute for Innovation and Implementation at 

University of Maryland’s School of Social Work and 

the National Quality Improvement Center on 

Tailored Services, Placement Stability, and 

Permanency for LGBTQ2S Children and Youth in 

Foster Care (2021), The Cuyahoga Youth Count: A 

Report on LGBTQ+ Youth Experience in Foster 

Care, https://theinstitute.umaryland.edu/media/ 

ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf. 

30Substance Abuse and Mental Health Services 

Administration, FAQs About Finding LGBTQI+ 

Inclusive Providers. https://www.samhsa.gov/ 

behavioral-health-equity/lgbtqi/faqs. 

31American Psychological Association, APA 

Resolution of Gender Identity Change Efforts, 

February 2021, https://www.apa.org/about/policy/ 

resolution-gender-identity-change-efforts.pdf. 

32 Ibid. 

33American Psychological Association, APA 

Resolution on Sexual Orientation Change Efforts, 

February 2021, https://www.apa.org/about/policy/ 

resolution-sexual-orientation-change-efforts.pdf. 

34For examples, see Charles Gallo testimony 

before the Ways and Means Committee Worker and 

Family Support Subcommittee Hearing on ‘‘Making 

a Difference for Families and Foster Youth,’’ May 

12, 2021. https://www.congress.gov/117/meeting/ 

house/112622/witnesses/HHRG-117-WM03-WstateCharles-GalloW-20210512.pdf, Creating Safer 

Spaces for Youth who are LGBTQ in Broward 

County, Florida: Collecting SOGIE Data for LiceCoaching Services. Vol. 96, No. 1, Special Issue: 

Sexual Orientation, Gender Identity/Expression, 

and Child Welfare (First of two issues) (2018), pp. 

27–52 (26 pages) https://www.jstor.org/stable/ 

48628034, Mountz, S., Capous-Desyllas, M., & 

Pourciau, E. (2018). ‘Because we’re fighting to be 

ourselves:’ voices from former foster youth who are 

transgender and gender expansive. Child Welfare, 

Suppl.Special Issue: Sexual Orientation, Gender 

Identity/Expression, and Child Welfare, 96(1), 103– 

125. Retrieved from https://www.proquest.com/ 

scholarly-journals/because-were-fighting-beourselves-voices-former/docview/2056448509/se-2. 

35Child Welfare Information Gateway, Protecting 

the Rights and Providing Appropriate Services to 

LGBTQIA2S+ Youth in Out-of-Home Care, 2023, 

https://www.childwelfare.gov/topics/systemwide/ 

laws-policies/statutes/LGBTyouth/. 

36 Ibid. 

37 Ibid. 

38 Ibid. 

39Children’s Bureau, Guidance for Title IV–B and 

IV–E Agencies When Serving LGBTQI+ Children 

and Youth, March 2, 2022, https://www.acf.hhs.gov/ 

cb/policy-guidance/im-22-01. 

LGBTQI+ foster youth.29 Due to the 

mental health challenges experienced 

by LGBTQI+ children in foster care it is 

essential to place LGBTQI+ children in 

placements that can provide the support 

and specialized resources necessary to 

support their health and wellbeing. We 

encourage the public to submit 

additional data, including personal 

stories from current and former 

LGBTQI+ foster children and others, 

that speak to the risks to children of 

placements that are not safe and 

appropriate, and the advantages of 

placements that are. 

One area of particular concern for the 

mental health of LGBTQI+ youth in 

foster care may be the possible exposure 

to so-called ‘‘conversion therapy.’’ 

Efforts to change or suppress a child’s 

sexual orientation, gender identity, or 

gender expression are not supported by 

credible evidence and have been 

rejected as harmful by the American 

Academy of Child and Adolescent 

Psychiatry, the American Academy of 

Pediatrics, the American Psychiatric 

Association, the American 

Psychological Association, and the 

National Association of Social Workers, 

among others.30 The American 

Psychological Association (APA) has 

concluded that any behavioral health or 

gender identity change effort that 

attempts to change an individual’s 

gender identity or expression is 

inappropriate.31 After reviewing 

scientific evidence on gender identity 

change efforts, harm, affirmative 

treatments, and professional practice 

guidelines, the APA has affirmed gender 

identity change efforts are associated 

with reported harm, and the APA 

opposes gender identity change efforts 

because of their association with 

harm.32 Likewise, according to the APA 

sexual orientation change efforts are 

‘‘coercive, can be harmful, and should 

not be part of behavioral health 

treatment.’’ 33

Further, evidence from qualitative 

studies, listening sessions, and 

Congressional testimony makes clear 

that many LGBTQI+ foster youth do not 

currently receive placements or services 

that are safe and appropriate, as 

required by statute.34

Current Approaches for Meeting the 

Needs of LGBTQI+ Children in Foster 

Care 

Current approaches for meeting the 

needs of LGBTQI+ children vary across 

states and tribes. Some agencies use, or 

are working towards implementing, 

child welfare practice models that 

address the specific needs of LGBTQI+ 

children, in line with existing Federal 

statutory requirements applicable to all 

children in foster care. In 2023, the 

Child Welfare Information Gateway 

issued Protecting the Rights and 

Providing Appropriate Services to 

LGBTQI+ Youth in Out-of-Home Care 

(the Report).35 The report provides a 

review of state laws, regulations, and 

policies related to reducing the negative 

experiences of any child who identifies 

as LGBTQI+, including laws and 

policies that support a child’s ability to 

be safe and free from discrimination; 

have access to needed care and services; 

and be placed in safe and appropriate 

placement settings with caregivers who 

have received appropriate training. The 

Report found that 22 states and the 

District of Columbia require agencies to 

provide youth who identify as LGBTQI+ 

with services and supports that are 

tailored to meet the specific needs of an 

LGBTQI+ child, such as providing 

clothing and hygiene products and 

referring to the child by the name and 

pronouns that align with their gender 

identity.36 Eight states and the District 

of Columbia offer developmentally 

appropriate case management that helps 

child welfare workers support LGBTQI+ 

youth.37 Fifteen states and the District of 

Columbia require training on LGBTQI+ 

issues for foster caregivers and related 

staff, including on how to communicate 

effectively and professionally with 

youth who identify as LGBTQI+, and 

education on current social science 

research and common risk factors for 

LGBTQI+ youth experiencing various 

negative outcomes.38

However, the Report also 

demonstrates that a majority of agencies 

do not have laws, regulations, or 

policies to make appropriate services 

and supports, or safe and appropriate 

placements, available to a child in foster 

care who identifies as LGBTQI+. 

Without such laws or policies, agencies 

may not adequately meet statutory 

requirements that guarantee LGBTQI+ 

youth in foster care face, like all foster 

youth, a safe and appropriate 

placement. In March 2022, ACF 

published Information Memorandum 

(IM) ACYF–CB–IM–22–01 which 

included suggestions on how agencies 

could best provide services and 

supports to each child who identifies as 

LGBTQI+ who is at risk of entering or 

is in foster care.39 ACF is proposing this 

NPRM to address the extensively 

documented risk factors and adverse 

outcomes that children in foster care 

who identify as LGBTQI+ experience. 

III. Overview of Proposal 

To support states and tribes in 

complying with Federal laws that 

require that all children in foster care 

receive safe and proper care, in this 

NPRM, ACF is proposing to require that 

agencies implement specific processes 

and requirements to ensure children in 

foster care who identity as LGBTQI+ are 

provided with placements the agency 

designates as safe and appropriate for an 

LGBTQI+ child, and with services that 

are necessary to support their health 

and wellbeing. These requirements 

clarify how title IV–E/IV–B agencies 

must meet IV–E and IV–B statutory 

requirements, including for the case 

review system and case plan, to 

appropriately serve children in foster 

care who identify as LGBTQI+. While 


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40As described in the Section-by-Section 

Discussion of Proposed Regulatory Changes, for 

example, nothing in this proposed rule will limit, 

preclude, or deny any religious provider’s ability to 

participate in the foster care system, as religious 

providers who have sincerely held religious beliefs 

that conflict with the policies of this proposed rule 

are not required to offer such placements for 

LGBTQI+ children. 

41Note that only providers seeking to be 

designated as safe and appropriate providers for 

LGBTQI+ children would be required to complete 

specific training to provide for the needs of the 

child related to the child’s self-identified sexual 

orientation, gender identity, and gender expression. 

Training and notification requirements proposed for 

all other contractors and providers are outlined in 

the Section-by-Section Discussion of Proposed 

Regulatory Changes. 

the general requirements for the case 

review system are not new, ACF is 

proposing to prescribe how agencies 

must implement the requirements to 

provide placements and services to 

children in foster care who identity as 

LGBTQI+. 

Under this proposed rule, agencies 

must ensure that a safe and appropriate 

placement is available for and provided 

to any child in foster care who identifies 

as LGBTQI+ and requests such a 

placement. The NPRM proposes to 

require agencies to ensure that the 

totality of their child welfare system 

includes sufficient placements for 

LGBTQI+ children that meet these 

standards, but would not require that 

every provider become designated as a 

safe and appropriate placement for 

LGBTQI+ children.40 To be considered 

as a safe and appropriate placement for 

a LGBTQI+ child means the provider 

with whom the agency places the child 

will establish an environment free of 

hostility, mistreatment, or abuse based 

on the child’s LGBTQI+ status, the 

provider is trained to be prepared with 

the appropriate knowledge and skills to 

provide for the needs of the child 

related to the child’s self-identified 

sexual orientation, gender identity, and 

gender expression,41 and the provider 

will facilitate the child’s access to ageappropriate resources, services, and 

activities that support their health and 

well-being (671(a)(24)) if the child 

wishes to access those resources, 

services, and activities. The proposed 

rule also includes requirements to notify 

children about the availability of these 

placements, the process to request such 

a placement, and the process to report 

placement concerns. The proposed 

requirements would also prohibit 

retaliation against a child who identifies 

as or is perceived to be LGBTQI+, 

require specific steps before the 

placement of transgender, intersex, and 

gender non-conforming children in sexsegregated child-care institutions (CCIs), 

require specific training for IV–E/IV–B 

agency caseworkers and supervisors ton 

how to appropriately serve LGBTQI+ 

youth and on how to implement the 

procedural requirements of this 

proposed rule, The proposed 

requirements would also require IV–E/ 

IV–B agencies to ensure that agency 

contractors and subrecipients, as well as 

any placement providers who do not 

seek designation as safe and appropriate 

placements, are informed of the 

procedural requirements of the 

proposed rule. These proposed 

requirements aim to fulfill existing case 

review system requirements and other 

statutory requirements that require that 

all children in foster care are 

appropriately placed in a safe setting 

consistent with the best interest and 

special needs of each child. The details 

of our proposals are described further in 

the section by section of the preamble 

below. 

Furthermore, ACF is proposing to 

modify the current regulations in 

§ 1355.34 to monitor a state agency’s 

compliance with the requirement in 

proposed § 1355.22(a)(1) through the 

Child and Family Service Reviews 

(CFSR). The CFSRs are a formal 

monitoring protocol in which the state’s 

efforts to comply with title IV–E and IV– 

B program requirements are assessed at 

the case and systems level. No tribal 

title IV–E agency is subject to CFSRs 

because none has a sufficient number of 

children in foster care and children 

receiving in-home services for ACF to 

apply the onsite CFSR case sampling 

procedures. 

Upon enactment of a final rule, ACF 

proposes to monitor both state and tribal 

title IV–E/IV–B agency’s plan 

compliance with the proposed 

requirements of § 1355.22(a) through (c) 

using the existing partial review process 

outlined in § 1355.34 because these 

requirements must be included in the 

state or tribe’s title IV–E plan that ACF 

must review and approve. Therefore, no 

regulatory changes to the partial review 

process are necessary. If ACF becomes 

aware of a potential non-compliance 

issue with § 1355.22, it will initiate the 

partial review process. Evidence of nonconformity identified through the 

partial review process may result in the 

state/tribal title IV–E/IV–B agency 

entering into a program improvement 

plan. The program improvement plan 

will be developed on a case-by-case 

basis by ACF and the agency will 

consider the extent of noncompliance. If 

the title IV–E/IV–B agency remains out 

of compliance, the agency will be 

subject to a penalty related to the extent 

of the noncompliance. 

Equity Impact 

This NPRM is consistent with the 

Administration’s priority of advancing 

equity for LGBTQI+ individuals as well 

as those historically underserved and 

adversely affected by persistent poverty 

and inequality (see Advancing Racial 

Equity and Support for Underserved 

Communities Through the Federal 

Government (Executive Order (E.O.) 

13985), issued Jan. 20, 2021; Advancing 

Equality for Lesbian, Gay, Bisexual, 

Transgender, Queer, and Intersex 

Individuals (E.O. 14075), issued June 15, 

2022). E.O. 14075 laid out objectives to 

reduce disparities that LGBTQI+ 

children face, including in foster care. 

LGBTQI+ children often have greater 

service needs, are at an increased risk 

for poor outcomes, are more likely to be 

placed in group settings and experience 

more placements, including those that 

may harm their well-being by 

undermining or suppressing their 

identity. By requiring agencies to ensure 

that safe and appropriate placements are 

available for and provided to LGBTQI+ 

children, we will work with agencies to 

ensure compliance with statutory 

requirements for all children in foster 

care to have a safe and appropriate 

placement that supports their health 

and well-being. 

IV. Section-by-Section Discussion of 

Proposed Regulatory Changes 

Required Protections for LGBTQI+ 

Children in Foster Care To Receive Safe 

and Appropriate Placements 

Section 1355.22 

Title IV–E establishes case plan 

requirements in sections 471(a)(16), 

475(1) and 475(5)(A) and (D) of the Act 

and 45 CFR 1356.21(g), assuring that a 

child in foster care receives safe and 

proper care consistent with the best 

interest and special needs of the child, 

and that the case plan provide a 

discussion of the safety and 

appropriateness of the child’s 

placement. To ensure that LGBTQI+ 

youth receive safe and proper care 

consistent with their best interests and 

special needs, in paragraph (a), ACF 

proposes procedural requirements that 

the title IV–E/IV–B agency must meet 

for each child in foster care who selfidentifies as LGBTQI+ or who has 

entered the child welfare system, in 

whole or in part, because of familial 

conflict related to their LGBTQI+ 

identity. 

ACF proposes to require in paragraph 

(a)(1) that the title IV–E/IV–B agency 

ensure a safe and appropriate placement 

is available for, and provided to, any 


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42See Substance Abuse and Mental Health 

Services Administration (SAMHSA): Moving 

Beyond Change Efforts: Evidence and Action to 

Support and Affirm LGBTQI+ Youth. SAMHSA 

Publication No. PEP2203–12–001. Rockville, MD: 

Center for Substance Abuse Prevention. Substance 

Abuse and Mental Health Services Administration, 

2023. 

43Substance Abuse and Mental Health Services 

Administration (SAMHSA): Moving Beyond Change 

Efforts: Evidence and Action to Support and Affirm 

LGBTQI+ Youth. SAMHSA Publication No. PEP22– 

03–12–001. Rockville, MD: Center for Substance 

Abuse Prevention. Substance Abuse and Mental 

Health Services Administration, 2023.) 44As noted throughout this document, the 

proposed rule would not require that all providers 

seek designation as a safe and appropriate 

placement for LGBTQI+ children, but instead 

requires the state or tribal title IV–E/IV–B agency to 

ensure that the totality of its child welfare system 

provides safe and appropriate placements for all 

LGBTQI+ children. 

45Child Welfare Information Gateway, State 

Statute Search. https://www.childwelfare.gov/ 

topics/systemwide/laws-policies/state/. 

46See National SOGIE Center, Trainings, https:// 

sogiecenter.org/offerings/training/. National SOGIE 

Center trainings include trainings for agency 

facilitators, such as All Children—All Families 

Training of Facilitators. Also see the San Francisco 

State University Family Acceptance Project, https:// 

familyproject.sfsu.edu/. 

child in foster care who identifies as 

LGBTQI+. 

Requirements of a Safe and Appropriate 

Placement 

For a placement to be considered safe 

and appropriate for a child who 

identifies as LGBTQI+, we propose to 

require that the title IV–E/IV–B agency 

make available and ensure that a child 

is placed with a foster care provider 

(e.g., foster family home, child care 

institution) who: (1) will establish an 

environment free of hostility, 

mistreatment, or abuse based on the 

child’s LGBTQI+ status, (2) is trained to 

be prepared with the appropriate 

knowledge and skills to provide for the 

needs of the child related to the child’s 

self-identified sexual orientation, gender 

identity, and gender expression, and (3) 

will facilitate the child’s access to ageappropriate resources, services, and 

activities that support their health and 

well-being. 

1. A Placement That Is Free From 

Hostility, Mistreatment, or Abuse 

Title IV–E provides that each child in 

foster care must receive a placement 

that is safe. In paragraph (a)(1)(i) we 

propose that the agency must place the 

child with a placement provider (e.g., 

foster family home, child care 

institution) who will establish an 

environment free from hostility, 

mistreatment, or abuse based on the 

child’s LGBTQI+ identity and status. In 

the background section of this proposed 

rule, we explain the significant body of 

evidence which demonstrates that when 

LGBTQI+ children face hostility, stigma, 

or rejection related to their sexual 

orientation or gender identity they are 

put at significant increased risk of 

adverse mental health outcomes and 

attempt suicide at higher rates.42 For 

example, under the proposed 

requirement, a provider who used 

derogatory language or slurs about a 

child’s LGBTQI+ identity would not be 

a safe and appropriate placement. 

Similarly, a provider who attempted to 

undermine, suppress, or change the 

sexual orientation, gender identity, or 

gender expression of a child, including 

through the use of so-called ‘‘conversion 

therapy’’ would not be a safe and 

appropriate placement As explained by 

the Substance Abuse and Mental Health 

Services Administration (SAMHSA), 

efforts that attempt to suppress or 

change a child’s sexual orientation or 

gender identity ‘‘are inappropriate, 

ineffective, and harmful practices that 

should not be provided to children and 

adolescents.’’ 43 In meeting the proposed 

requirement, the agency must not place 

LGBTQI+ identifying children with a 

provider who unreasonably limits or 

denies a child’s ability to express their 

sexual orientation, gender identity, or 

gender expression. For example, to be 

considered a safe and appropriate 

placement, a provider is expected to 

utilize the child’s identified pronouns, 

chosen name, and allow the child to 

dress in an age-appropriate manner that 

the child believes reflects their selfidentified gender identity and 

expression. 

2. A Placement With a Provider Trained 

To Provide for the Needs of an LGBTQI+ 

Child 

For a placement to be considered safe 

and appropriate for children who 

identify as LGBTQI+, we propose in 

paragraph (a)(1)(ii) that the agency must 

place the child with a placement 

provider who is trained to be prepared 

with the appropriate knowledge and 

skills to provide for the needs of the 

child related to the child’s selfidentified sexual orientation, gender 

identity, and gender expression. This 

includes foster family home providers 

and staff who work in child-care 

institutions (CCIs) as defined in 45 CFR 

1355.20.44

Title IV–E requires the agency to 

certify that foster parents are ‘‘prepared 

adequately with the appropriate 

knowledge and skills to provide for the 

needs of the child [and] that the 

preparation will be continued, as 

necessary, after the placement of the 

child’’ (471(a)(24)). These requirements 

are important for protecting the safety 

and mental health of the child. As 

explained in studies cited above and 

SAMHSA’s 2023 report Moving Beyond 

Change Efforts: Evidence and Action to 

Support and Affirm LGBTQI+ Youth, 

research demonstrates that when a 

LGBTQI+ child has their identity 

respected and supported by the 

caregivers in their life, their risks of 

attempted suicide decrease 

dramatically. 

Some states already provide training 

of practices to serve LGBTQI+ children, 

as noted on the Child Welfare 

Information Gateway’s State Statutes 

Search.45 Many agencies have not yet 

incorporated provider training 

addressing the needs of a child who 

identifies as LGBTQI+ into their 

curriculum. We anticipate that all title 

IVE/IVB agencies will need to develop 

or revise their training curriculum to 

meet the proposed provider training 

requirements in this NPRM. 

We are not proposing a specific 

training curriculum that agencies would 

need to use to train foster care providers 

(i.e., foster family homes and child care 

institutions). However, agencies would 

need to ensure that the training 

curriculum adequately prepares foster 

family home and child-care institution 

providers to meet the best interests and 

special needs of an LGBTQI+ child. For 

a training to adequately prepare a 

provider to meet the best interests and 

special needs of an LGBTQI+ child, it 

would need to be a training that reflects 

evidence, studies, and research about 

the impacts of rejection, discrimination, 

and stigma on the safety and wellbeing 

of LGBTQI+ youth, and provides 

information for providers about 

practices that promote the safety and 

wellbeing of LGBTQI+ youth. HHS 

seeks comments on how ACF can 

ensure these training curriculums for 

foster care providers are of high quality. 

We encourage agencies to consider 

using or adapting foster care provider 

training already established by entities 

with specialized knowledge on this 

topic, such as the National SOGIE 

Center, a collaborative led by 

Innovations Institute at the University of 

Connecticut School of Social Work and 

funded by the ACF Children’s Bureau to 

improve permanency, stability, and 

well-being for this population.46 The 

Child Welfare Information Gateway has 

also issued publications providing 

guidance on how to create a welcoming 

and safe placement for children in foster 

care who identify as LGBTQI+, 


ddrumheller on DSK120RN23PROD with PROPOSALS1
66758 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

47Child Welfare Information Gateway (2021). 

Supporting LGBTQ+ youth: A guide for foster 

parents. U.S. Department of Health and Human 

Services, Administration for Children and Families, 

Children’s Bureau. https://www.childwelfare.gov/ 

pubPDFs/LGBTQyouth.pdf. 

49See Substance Abuse and Mental Health 

Services Administration (SAMHSA): Moving 

Beyond Change Efforts: Evidence and Action to 

Support and Affirm LGBTQI+ Youth. SAMHSA 

Publication No. PEP22–03–12–001. Rockville, MD: 

Center for Substance Abuse Prevention. Substance 

Abuse and Mental Health Services Administration, 

2023. 

including Supporting LGBTQ+ Youth: A 

Guide for Foster Parents.47

As explained in studies cited above 

and SAMHSA’s 2023 Moving Beyond 

Change Efforts: Evidence and Action to 

Support And Affirm LGBTQI+ Youth, 

research demonstrates that even just one 

supportive adult can positively impact 

the mental health of LGBTQI+ youth. 

This support can reduce negative 

mental health outcomes and risk of 

suicide. The placement provider can 

and should be a supportive adult for the 

children in their care. Moreover, the 

SAMHSA report also found that ‘‘family 

or caregiver, peer, school, and 

community support for youth of diverse 

sexual orientation and/or gender 

identity promotes better mental health 

and fewer negative outcomes and can 

lead to positive development and 

emotional resilience.’’ 48 These findings 

demonstrate how a supportive 

placement can promote positive 

outcomes, while also illustrating how a 

lack of support on the part of an adult 

caregiver does not. 

3. A Placement That Will Facilitate 

Access to Age-Appropriate Resources, 

Services, and Activities 

The title IV–E/IV–B case review 

system requires that the agency have 

procedures for assuring that each child 

has a case plan designed to achieve 

placements in the most appropriate 

setting available consistent with the best 

interests and special needs of the child 

(422(b), 471(a)(16), 475(1)(B), and 

475(5)). To ensure that children have 

their special needs met, we propose in 

paragraph (a)(1)(ii)(B) that the agency 

must place the LGBTQI+ child with a 

placement provider will facilitate the 

child’s access to age-appropriate 

resources, services, and activities that 

support the child’s health and 

wellbeing, which may include services 

and supports related to their sexual 

orientation or gender identity. This 

proposal will ensure specifically that a 

child who identifies as LGBTQI+ will 

have access to a range of services and 

activities that addresses their specific 

health and wellbeing needs. These may 

include, but are not limited to, 

facilitating access to behavioral health 

supports respectful of their LGBTQI+ 

identity, interacting with LGBTQI+ 

mentors and peers, joining and 

participating in affinity groups, and 

connecting the child to available 

LGBTQI+ supportive resources and 

events, either in person or virtually 

depending on local availability. A 

significant body of research 

demonstrates that these services are 

essential to support the child’s safe and 

appropriate placement, and to support 

the emotional, developmental, and 

behavioral health needs of LGBTQI+ 

children in foster care.49 As such, a safe 

and appropriate provider for an 

LGBTQI+ child must not discourage or 

prevent the child who identifies as 

LGTBQI+ from receiving ageappropriate services and supports that 

support their health and well-being 

related to the child’s self-identified 

sexual orientation, gender identity, or 

gender expression. HHS understands 

that some IV–E/IV–B agencies will have 

more limited access to age-appropriate 

resources, services, and activities due to 

fewer service providers able to provide 

LGBTQI+ supportive services. HHS 

seeks comments on how ACF can best 

support agencies, including those 

located in rural and other resource 

limited areas, in fulfilling this 

requirement. 

Prohibition of Disclosure of Sensitive 

Information 

Title IV–E/IV–B agencies are 

prohibited from disclosing information 

concerning foster children for any 

purpose except for those specifically 

authorized by statute section 471(a)(8). 

Information about a foster child’s 

LGBTQI+ identity, as well as any other 

information in their foster care case file, 

is protected by these confidentiality 

requirements. Foster children’s personal 

information may only be disclosed for 

specific authorized purposes, which are, 

in paraphrase: the administration of the 

title IV–E plan and that of other Federal 

assistance programs; any investigation, 

prosecution, or audit conducted in 

connection with any of those programs; 

and reporting child abuse and neglect to 

appropriate authorities. Under ACF 

regulations and policy, information that 

the IV–E/IV–B agency discloses for 

those allowable purposes may not be 

redisclosed by recipients unless the 

redisclosure is also for one of the 

enumerated allowable purposes. 45 CFR 

205.50; Child Welfare Policy Manual 

8.4E. 

Notification and Requests for Safe and 

Appropriate Placements 

In paragraph (a)(2) ACF proposes to 

require that the title IV–E/IV–B agency 

establish a process by which a child 

identifying as LGBTQI+ may request a 

safe and appropriate placement as 

described in paragraph (a)(1). This will 

help the agency ensure that plan 

requirements regarding placements are 

fulfilled, consistent with the child’s best 

interest and special needs. In paragraph 

(a)(2)(i), we propose that the agency’s 

process include a notice to specified 

children of the availability of these 

placements and how to request them. 

Specifically, at a minimum, the agency 

must provide notice to a child aged 14 

and over, and a child under age 14 if the 

child was removed, either in whole or 

in part, as a result of familial conflict 

about their actual or perceived 

LGBTQI+ identity, or if the child’s 

LGBTQI+ identity is otherwise known 

to the agency. This proposed 

requirement is imposed on the state or 

tribal agency and is not a requirement 

of providers. As discussed further on in 

the proposed rule, this proposal gives 

states and tribes flexibility to determine 

how to work with providers to 

disseminate such information. 

We are proposing the agency provide 

notification to all children aged 14 and 

older because the existing case plan 

requirement in section 475(1)(B) of the 

Act already requires that each child’s 

case plan ‘‘shall be developed in 

consultation with the child’’ for 

children 14 and older. Nothing in this 

proposed rule would preclude agencies 

from notifying children earlier of the 

availability of safe and appropriate 

placements. 

In paragraph (a)(2)(ii), ACF proposes 

that the notice must be provided in an 

age-appropriate manner, both verbally 

and in writing. We propose these two 

communication forms to provide the 

child with different opportunities and 

ways to understand that placements 

described in paragraph (a)(1) are 

available and how they can be 

requested. For example, having a verbal 

conversation provides a ready 

opportunity for a child to ask questions 

to their caseworker as needed. In 

contrast, written information allows the 

agency to provide children with 

uniform, consistent information that a 

child or youth can review at their 

convenience. The agency process for a 

child to request a placement defined in 

proposed paragraph (a)(1) may vary by 

state, tribe, and/or locality. Examples 

include a process for the child to: call 

or text the agency caseworker/other 

agency personnel, inform agency 


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Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 66759 

50Child Welfare Information Gateway, State 

Statute Search. https://www.childwelfare.gov/ 

topics/systemwide/laws-policies/state/. 

personnel in person, or email the agency 

caseworker/other agency personnel. 

Other options may include establishing 

private, secure accounts on a social 

media platform or smart phone 

application that could be used by 

children in foster care and accessed by 

designated agency caseworkers or 

agency personnel. In paragraph 

(a)(2)(iii), we propose that the notice 

must inform the child of how they may 

request a safe and appropriate 

placement. 

Once the child’s LGBTQI+ identity is 

known to the title IV–E/IV–B agency, it 

is the responsibility of the agency to 

provide the required information to the 

child, while protecting the privacy and 

confidentiality of the child. Regardless 

of the method used, agencies must 

ensure the privacy and confidentiality 

of any information shared by a child 

who is seeking a safe and appropriate 

placement. 

Reporting and Responding to Concerns 

About Placements That Are Not Safe or 

Appropriate 

In paragraph (a)(3), ACF proposes to 

require the title IV–E/IV–B agency to 

implement a process for children 

identifying as LGBTQI+ to report 

concerns about any placements that do 

not meet the requirements of paragraph 

(a)(1). We are proposing this 

requirement to ensure that agencies 

meet case plan requirements to assure 

that the child receives safe and 

appropriate care. 

In paragraph (a)(3)(i), we propose that 

the agency provide a notice of the 

availability of this process to all 

children who meet the requirements of 

paragraphs (a)(2)(i)(A) and (B). 

Specifically, we propose that the agency 

provide the notice to all children in 

foster care age 14 and over, and a child 

under age 14 if the child was removed, 

either in whole or in part, as a result of 

familial conflict about their actual or 

perceived LGBTQI+ identity, or if the 

child’s LGBTQI+ identity is otherwise 

known to the agency. Once the child’s 

LGBTQI+ identity is known to the title 

IV–E/IV–B agency, it is the 

responsibility of the agency to provide 

the information about the agency’s 

process to the child. 

The proposed agency process for 

children to report concerns about their 

placement may vary by state, tribe, and/ 

or locality. Examples include a process 

for the child to: call or text the agency 

caseworker/other agency personnel, 

inform agency personnel in person, call 

a hotline, or email the agency 

caseworker/other agency personnel. 

Other options may include establishing 

private, secure accounts on a social 

media platform or smart phone 

application that could be used by 

children and accessed by designated 

agency caseworkers or agency 

personnel. Regardless of the method 

used, agencies must ensure the privacy 

and confidentiality of any information 

shared by a child who is seeking a safe 

and appropriate placement. In 

paragraph (a)(3)(ii), ACF proposes that 

the agency must provide notice to the 

child explaining how to report concerns 

about placements to the child in an ageappropriate manner, both verbally and 

in writing. We propose these two 

communication forms to provide the 

child with different opportunities and 

ways to understand the agency’s process 

for the child to make a report about their 

placement concerns not meeting 

paragraph (a)(1). For example, having a 

verbal conversation provides a ready 

opportunity for a child to ask questions 

to their caseworker as needed. In 

contrast, written information allows the 

agency to provide children with 

uniform, consistent information that a 

child or youth can review at their 

convenience. 

We propose in paragraph (a)(3)(iii) 

that the agency respond promptly to the 

child’s reported concerns. The title IV– 

E/IV–B agency must notify all children 

who meet the requirements of paragraph 

(a)(2)(i) of the availability of this process 

in an age-appropriate manner, both 

verbally and in writing and in a manner 

consistent with the agency’s timeframes 

for investigating child abuse and neglect 

reports. 

ACF has reviewed state agencies 

policies and practices about 

investigating child abuse and neglect in 

order to provide context for this 

proposal and identified existing state 

agency requirements for handling such 

reports and responding to reports with 

different levels of urgency.50 We 

propose that the agency determine the 

timeframe for responding promptly to a 

child’s report by requiring the agency to 

align this proposed process with 

existing timelines for agency child 

abuse and neglect reporting and 

investigating procedures. All states are 

required to initiate a child abuse and 

neglect investigation in a timely 

manner, which is generally defined as 

within 72 hours. However, when there 

is reasonable cause to believe that a 

child is in imminent danger, most 

agencies require investigations to be 

initiated immediately, in as little as two 

hours and not longer than 24 hours after 

the report is made. Further, in many 

agencies, the investigation must begin 

within 12 hours of a report if serious 

harm is indicated. In certain cases, we 

anticipate that a report from a LGBTQI+ 

youth that they feel their placement is 

not safe or appropriate should merit a 

response of great urgency from the 

agency. For example, given the 

extensive evidence that LGBTQI+ youth 

who face bullying, discrimination, or 

harassment related to their sexual 

orientation or gender identity are at 

significantly increased risk of violence 

or self-harm, we anticipate that agencies 

should respond with urgency when a 

LGBTQI+ child raises concerns that a 

placement that is not safe and 

appropriate. 

ACF solicits public comment on 

whether and how best to define 

‘‘promptly’’ as applied to this provision, 

understanding that the circumstances of 

the child’s report may dictate the 

timeframes and immediacy of the action 

the IV–E/IV–B agency must take in 

responding to the report. 

Protection From Retaliation 

In paragraph (a)(4), ACF proposes to 

require that the title IV–E/IV–B agency 

have a procedure to ensure that no child 

in foster care experiences retaliation 

when the child has disclosed their 

LGBTQI+ identity, is otherwise reported 

or perceived to have an LGBTQI+ 

identity, has requested a safe and 

appropriate placement, or has reported 

concerns that the placement is not 

meeting the requirements of paragraph 

(a)(1). Retaliation in this context can be 

committed by title IV–E/IV–B agency 

personnel, the agency’s contractors, or 

foster care providers. This proposed 

requirement will assist agencies in 

ensuring that a child in foster care 

receives safe and appropriate care 

consistent with the best interest and 

special needs of the child. The term 

retaliation means imposing negative 

consequences on the child because of 

the child’s disclosure of their LGBTQI+ 

identity, perceived LGBTQI+ identity, 

request, or report. This may include 

such things as unwarranted placement 

changes (including unwarranted 

placement in congregate care rather than 

in family-like settings), restriction of 

access to LGBTQI+ peers or ageappropriate materials, required 

participation in efforts to degrade, 

disparage or change the child’s sexual 

orientation or gender identity, 

disclosing the child’s LGBTQI+ identity 

in ways that cause harm or risk the 

privacy of the child, or other activities 

that stigmatize a child’s LGBTQI+ 

identity. 

ACF is proposing this requirement 

because we are concerned about the 


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51The Trevor Project (2021), Facts About LGBTQ 

Youth Suicide. https://www.thetrevorproject.org/ 

resources/article/facts-about-lgbtq-youth-suicide/. 

52Wilson, B.D.M., Cooper, K., Kastanis, A., & 

Nezhad, S. (2014). Sexual and Gender Minority 

Youth in Foster care: Assessing Disproportionality 

and Disparities in Los Angeles. Los Angeles: The 

Williams Institute, UCLA School of Law. https://

williamsinstitute.law.ucla.edu/wp-content/uploads/ 

SGM-Youth-in-Foster-Care-Aug-2014.pdf. 

1 Matarese, M., Greeno, E., Weeks, A., Hammond, 

P. (2021). The Cuyahoga youth count: A report on 

LGBTQ+ youth’s experience in foster care. 

Baltimore, MD: The Institute for Innovation & 

Implementation, University of Maryland School of 

Social Work. https://theinstitute.umaryland.edu/ 

media/ssw/institute/Cuyahoga-YouthCount.6.8.1.pdf. 

53The Trevor Project (2021) The Trevor Project 

Research Brief: LGBTQ Youth with a History of 

Foster Care https://www.thetrevorproject.org/wpcontent/uploads/2021/07/LGBTQ-Youth-with-aHistory-of-Foster-Care_-May-2021.pdf. 

54See Substance Abuse and Mental Health 

Services Administration (SAMHSA): Moving 

Beyond Change Efforts: Evidence and Action to 

Support and Affirm LGBTQI+ Youth. SAMHSA 

Publication No. PEP2203–12–001. Rockville, MD: 

Center for Substance Abuse Prevention. Substance 

Abuse and Mental Health Services Administration, 

2023. 

55 Ibid. 

potential for a child who identifies or is 

perceived as LGBTQI+ to be subjected to 

negative consequences in response to 

disclosure of their actual or perceived 

LGBTQI+ identity. 

The agency must ensure that children 

who disclose their identity, are 

perceived to have an LGBTQI+ identity, 

report a problem with a placement, or 

request a safe and appropriate 

placement are not subjected to any 

attempt to undermine, suppress, or 

change their sexual orientation, gender 

identity, or gender expression, efforts 

sometimes referred to as so-called 

‘‘conversion therapy.’’ This includes 

ensuring the privacy and confidentiality 

of any information shared during these 

processes. As described in the 

background section of this proposed 

rule, these practices put LGBTQI+ youth 

at significant risk and are never safe or 

appropriate. 

Access to Supportive and AgeAppropriate Services 

In paragraph (a)(5), ACF proposes to 

require that the title IV–E/IV–B agency 

ensure that children who identify as 

LGBTQI+ have access to age-appropriate 

services that support their needs related 

to their sexual orientation and gender 

identity or expression This includes 

clinically appropriate mental and 

behavioral health care supportive of 

their sexual orientation and gender 

identity and expression as needed. 

Clinically appropriate services means 

that they are based on current evidence 

and generally accepted medical 

standards of care. 

Studies show that LGBTQI+ children 

have higher rates of suicidality than 

their heterosexual peers.51 Two recent 

child welfare agency studies showed 

that LGBTQI+ youth in foster care were 

more likely to be hospitalized for 

emotional reasons compared to nonLGBTQI+ youth.52 Being in foster care 

also appears to be an independent risk 

factor for LGBTQI+ youth: a 2020 survey 

found that ‘‘LGBTQ youth who reported 

having been in foster care had three 

times greater odds of reporting a pastyear suicide attempt compared to those 

who had not.’’ 53

The proposal to ensure that children 

who identify as LGBTQI+ have access to 

services that are tailored to their specific 

needs, including needs related to their 

LGBTQI+ identity is supported by the 

existing case plan requirements as 

defined in section 475(1)(B) of the Act, 

specifically, the section requiring that 

each child have a plan ‘‘for assuring that 

. . . services are provided to the 

parents, child, and foster parents in 

order to . . . address the needs of the 

child while in foster care, including a 

discussion of the appropriateness of the 

services that have been provided to the 

child under the plan.’’ The proposal 

also provides guidance to states and 

tribes regarding how ACF interprets, for 

LGBTQI+ children, the IV–E state plan 

requirement that agencies develop and 

implement standards to ensure that 

children in foster care placements are 

provided quality services that protect 

their safety and health. Section 

471(a)(22). 

ACF understands that some states also 

have few services providers able to 

provide LGBTQI+ supportive services. 

ACF seeks comments on how ACF can 

best support agencies, including those 

located in rural and other resource 

limited areas, in fulfilling this 

requirement. 

Placement Requirements for 

Transgender, Gender Non-Conforming, 

and Intersex Children 

The title IV–E statute provides that 

each child must have a case plan 

designed to achieve placements in the 

most appropriate setting available 

consistent with the best interests and 

special needs of the child (422(b), 

471(a)(16), 475(1)(B), and 475(5)). To 

meet these statutory requirements, in 

paragraph (b), ACF proposes to require 

when the title IV–E/IV–B agency is 

placing a transgender, gender nonconforming, and intersex child with a 

safe and appropriate provider that is a 

sex segregated child-care institution, 

that they must make placements 

consistent with the child’s selfidentified gender identity. Evidence 

demonstrates that when transgender, 

intersex, or gender non-conforming 

youth have their gender identity 

respected it reduces the risk of adverse 

mental health outcomes and attempted 

suicide, and provides benefits such as 

enhancing a child’s sense of safety and 

overall well-being, supporting their 

sense of self and positively impacting 

their mental health. Conversely, when 

transgender 54 gender non-confirming 

youth are forced to use sex-segregated 

spaces that do not align with their 

gender identity it can exacerbate the 

psychological distress related to gender 

dysphoria.55 The IV–E/IV–B agency 

must consult with the transgender, 

gender non-conforming, or intersex 

child to provide an opportunity to voice 

any concerns related to placement when 

the agency is considering a placement in 

such a facility. when the agency is 

considering a placement in such a 

facility. 

Training and Informational 

Requirements 

In paragraph (c), ACF proposes to 

require that title IV–E/IV–B agencies 

ensure that their employees who have 

responsibility for placing children in 

foster care, making foster care 

placement decisions, or providing 

services are trained to implement the 

procedural requirements of this 

proposed rule and to appropriately 

serve LGBTQI+ children. Such training 

should adequately prepare caseworkers 

and supervisors with the appropriate 

knowledge and skills to address the 

needs of foster children on their 

caseload related to sexual orientation, 

gender identity, and expression. The 

training should also ensure that all 

agency caseworkers and supervisors are 

prepared to implement and fulfill the 

requirements of this proposed rule. For 

a training to adequately prepare agency 

staff to meet the best interests and 

special needs of an LGBTQI+ child, it 

would need to be a training that reflects 

evidence, studies, and research about 

the impacts of rejection, discrimination, 

and stigma on the safety and wellbeing 

of LGBTQI+ youth, and provides 

information for agency staff about 

practices that promote the safety and 

wellbeing of LGBTQI+ youth. This 

proposed requirement is necessary to 

ensure that IV–E/IV–B agencies can 

properly implement the case plan and 

case review requirements of the Act for 

LGBTQI+ foster children. 

In paragraph (c), ACF also proposes to 

require that title IV–E/IV–B agencies 

ensure that all agency contractors and 

subrecipients who have responsibility 


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for placing children in foster care, 

making placement decisions, or 

providing services are informed of the 

procedural requirements necessary to 

comply with this proposed rule. 

Similarly, we propose to require that 

agencies ensure that all placement 

providers who have not chosen to seek 

designation as safe and appropriate 

placement providers for LGBTQI+ foster 

children are also informed of the 

procedural requirements necessary to 

comply with this proposed rule. As part 

of this requirement, agencies would be 

required to ensure that contractors, 

subrecipients, and placement providers 

are all informed of the required nonretaliation provisions outlined in 

paragraph (a)(4). 

Ensuring Compliance Through the Child 

and Family Services Review 

ACF proposes to revise the Child and 

Family Services Review (CFSR) 

regulations to make clear that the CFSR 

process will assess agencies on their 

compliance with the requirements of 

these proposed regulations. Specifically, 

we propose to revise § 1355.34(c)(2)(i) to 

add ‘‘including placements described in 

§ 1355.22(a)(1)’’ to the case review 

system requirement for provisions to 

place the child in an appropriate 

placement that meets their needs. We 

also propose to add at the end of 

§ 1355.34(c)(2)(i) within the 

parenthetical ‘‘§ 1355.22(a)(1))’’. Under 

the current CFSR regulations, the 

Children’s Bureau reviews how title IV– 

E agencies ensure the safety and 

appropriateness of foster care 

placements. This proposed amendment 

will ensure that the requirements 

proposed to be added to § 1355.22(a)(1) 

are included in the CFSRs, and 

specifically examined under the case 

review systemic factor outlined in 

§ 1355.34(c)(2)(i). 

In implementing the requirements 

proposed under this rule, ACF 

anticipates that agencies will likely 

need to produce new administrative 

records to monitor and track requests for 

safe and appropriate placements and 

adjudication of those requests. Such 

administrative records, including at the 

case file level, may be reviewed through 

the CFSR process. ACF invites public 

comment on what further guidance 

states may need on producing such 

administrative records, while protecting 

the privacy and confidentiality of 

LGBTQI+ youth. 

Severability 

For the reasons described above, ACF 

believes that its authority to implement 

each of the provisions in the proposed 

regulation is well-supported in law and 

practice and should be upheld in any 

legal challenge. ACF also believes that 

its exercise of its authority reflects 

sound policy. However, in the event 

that any portion of the proposed rule is 

declared invalid, ACF intends that the 

other provisions be severable. 

Religious Liberty and Other Freedoms 

ACF appreciates the vital role that 

religious providers play in providing 

care and services to children in the 

child welfare system. ACF values the 

child welfare services that faith-based 

organizations provide, consistent with 

HHS-wide regulations governing social 

services ensuring that religious 

organizations are eligible on the same 

basis as any other organization to 

participate in child welfare programs 

administered with title IV–E and IV–B 

funds. See 45 CFR 87.3(a). ACF takes 

seriously its obligations to comply with 

the Constitution and Federal laws that 

support and protect religious exercise 

and freedom of conscience, including 

the First Amendment and the Religious 

Freedom Restoration Act (RFRA), 42 

U.S.C. 2000bb et seq., as well as all 

other applicable Federal civil rights 

laws and HHS regulations including 45 

CFR part 87 (‘‘Equal Treatment for 

Faith-Based Organizations’’). ACF will 

continue to operate the title IV–E and 

IV–B programs in compliance with 

these legal requirements. ACF remains 

fully committed to thoroughly 

considering any organization’s assertion 

that any obligations imposed upon them 

that are necessitated by this proposed 

rule as finalized conflicts with their 

rights under those laws. 

If a title IV–E/IV–B provider alleges 

that any obligation that this proposed 

rule as finalized requires a state or tribe 

to impose substantially burdens the 

provider’s religious exercise, ACF will 

apply the test set out by RFRA to 

determine whether an exemption is 

required. Under RFRA, when Federal 

action substantially burdens an 

individual or entity’s exercise of 

religion, the Federal government must 

afford that individual or entity an 

exemption to the rule unless the 

government can demonstrate that 

applying the burden in that particular 

instance furthers a compelling 

governmental interest and is the least 

restrictive means of doing so. See 42 

U.S.C. 2000bb–1(b). Accordingly, under 

RFRA, we first assess whether the 

particular application of the rule 

substantially burdens the provider’s 

exercise of religion. If so, we assess 

whether applying the requirement 

furthers a compelling interest and 

whether there are less restrictive 

alternatives available. Thus, even if the 

rule substantially burdens a religious 

practice, an exemption would not be 

required if the burden is necessary to 

the advancement of a compelling 

government interest through the least 

restrictive means possible. We will 

apply RFRA in accordance with the 

statutory text and applicable case law. 

When drafting this proposed rule, 

ACF has taken these RFRA principles 

into account, and has endeavored to 

write each provision to provide states 

and tribes with the flexibility to 

implement the measures without 

imposing any substantial burdens on 

providers’ religious exercise that we can 

reasonably anticipate. Most importantly, 

nearly all of the requirements in this 

proposed rule would be imposed 

directly on state and tribal IV–E/IV–B 

agencies, as opposed to on any private 

foster care agency, foster parent, kinship 

caregiver or other provider. The only 

requirement that would be imposed on 

private providers by the proposed rule 

is the requirement to be informed of the 

procedural requirements to comply with 

the proposed rule (including the 

required non-retaliation provisions 

outlined in paragraph (a)(4)). All other 

requirements would be responsibilities 

of the state and tribal IV–E/IV–B 

agencies, and ACF believes that these 

responsibilities have been drafted in a 

manner that the IV–E/IV–B agencies can 

satisfy without imposing any substantial 

burden on religious providers that is 

reasonably foreseeable. 

As the Supreme Court has recently 

made clear, the First Amendment 

protects faith-based entities that provide 

foster care services. See Fulton v. City of 

Philadelphia, 593 U.S. __(2021). 

Consistent with this protection, the 

proposed rule, if adopted, would not 

require any faith-based provider to seek 

designation as a safe and appropriate 

provider for LGBTQI+ children as 

described in this proposed rule if the 

provider had sincerely held religious 

objections to doing so. When drafting 

the text, ACF was cognizant that a foster 

care requirement that precludes a child 

welfare provider from participating in 

the program while adhering to its 

religious beliefs might substantially 

burden religious exercise. Rather than 

placing requirements on child welfare 

providers, this rule as proposed would 

require agencies to ensure that their 

child welfare networks as a whole 

include sufficient numbers of providers 

that are willing to supply safe and 

appropriate placements for LGBTQI+ 

children so that all children who 

request such a placement will receive an 

appropriate one. To the extent that 

current networks are insufficient, the 

Department believes that IV/B/IV–E 


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56Child Welfare Information Gateway. (2022). 

Kinship care and the child welfare system. U.S. 

Department of Health and Human Services, 

Administration for Children and Families, 

Children’s Bureau. https://www.childwelfare.gov/ 

pubs/f-kinshi/. 

agencies will be able to meet this 

requirement through outreach, training 

and other supply-building activities to 

build their provider networks, and can 

do so without imposing substantial 

burdens on religious exercise of 

providers. When states and tribes select 

organizations to participate in the child 

welfare program, ACF would 

recommend that states and tribes do not 

adopt selection criteria that adversely 

disadvantages any faith-based 

organizations that express religious 

objections to providing safe and 

appropriate placements for LGBTQI+ 

children. 

While this proposed rule would 

require title IV–E/IV–B agencies to 

establish processes for children to 

receive notification concerning the 

availability of safe and appropriate 

placements, how to request them and 

the means of reporting any concerns 

about such placements, ACF expects 

agencies would adopt these notice 

requirements without substantially 

burdening the religious exercise of any 

child welfare providers that expressed 

religious objections to disseminating the 

notices in any reasonably foreseeable 

way. For example, under the proposed 

rule, a title IV–E/IV–B agency may 

provide the notices directly through 

agency staff. Alternatively, state and 

tribal agencies may require the 

providers in their child welfare network 

to disseminate the notices as a general 

matter while exempting any entities that 

express religious objections to doing so 

and utilizing agency staff in those 

limited instances. In addition, HHS is 

not aware of any instances in which a 

faith-based organization has requested a 

religious exemption from an HHS notice 

requirement that is generally applicable 

to social service providers 

notwithstanding the fact that the notice 

informs beneficiaries of alternative 

providers. 

This proposed rule similarly would 

enable title IV–E/IV–B agencies to retain 

discretion when determining how to 

ensure that contracted caseworkers and 

supervisors who are responsible for 

placing children in foster care, making 

placement decisions or providing 

services, as well as placement providers 

who choose not to seek designation as 

safe and appropriate placements are 

informed of the requirements of this 

rule. To be clear, this proposed 

regulatory requirement only requires 

that contractors/subrecipients and those 

placement providers who are not 

seeking designation as safe and 

appropriate placements for LGBTQI+ 

children are informed of the procedural 

requirements, including the nonretaliation provision. 

This proposed rule enables title IV–E/ 

IV–B agencies to retain flexibility to 

determine how title IV–E/IV–B agencies 

will ensure that LGBTQI+ children will 

upon request be transferred from any 

entity that will not provide a safe and 

appropriate placement as described by 

the finalized rule to one that will. ACF 

expects agencies to adopt transfer 

processes that minimize the extent of 

any obligations on faith-based providers 

that need to transfer children as a result 

of this proposed rule as finalized. ACF 

notes that it has no historical basis to 

anticipate religious objections to 

cooperating with such transfers, as HHS 

has not received any religious objections 

in other instances in which HHS 

required faith-based grantees to refer 

third parties impacted by religious 

objections to alternative providers. 

As we have explained, we have 

crafted this proposed rule to minimize 

the likelihood that it will impose 

substantial burdens on religious 

exercise in violation of the Constitution 

or RFRA. Nevertheless, should any 

child welfare service provider incur any 

unforeseen religious objections to 

compliance with an obligation that is 

necessitated by this proposed rule as 

finalized (as opposed to any 

discretionary measure imposed by a 

state or tribe) ACF will consider 

requests for accommodation on a caseby-case basis in accordance with the 

Constitution and Federal statutes. ACF 

recognizes that RFRA requires a factspecific case-by-case analysis of 

whether any specific obligation 

necessitated by this proposed rule 

imposes a substantial burden on 

religious exercise, and, if so, whether 

that obligation is in the particular case 

the least restrictive means of furthering 

a compelling government interest. See 

Gonzales v. Centro, 546 U.S. 418 (2006). 

This case-by-case analysis will allow 

ACF to consider whether any 

substantial burden imposed on the 

provider’s exercise of religion is in 

furtherance of a compelling 

governmental interest, and is the least 

restrictive means of advancing that 

interest. This will involve considering 

any harm an exemption could have on 

third parties involved in the child 

welfare program. See Cutter v. 

Wilkinson, 544 U.S. 709, 720 (2005). 

This process provides an opportunity 

for service providers to raise with ACF 

any concerns regarding obligations 

necessitated by this proposed rule as 

finalized, which would enable ACF to 

determine whether an exemption or 

modification of the application of the 

provision at issue is appropriate under 

the Federal religious freedom law at 

issue. 

As to the process for filing any 

requests for religious accommodation, 

state and tribal child welfare agencies 

must continue to notify sub-awardees of 

their religious freedom rights. As 

required under 45 CFR 87.3(a) and (k), 

state and tribal child welfare agencies 

must continue to ensure that their 

notices or announcements of award 

opportunities include language that is 

substantially similar to that in section 

(a) of appendix A to part 87. Similarly, 

notices of award or contract must 

include language that is substantially 

similar to that in section (a) of appendix 

B to part 87. In relevant part, these 

appendices require that sub-awards and 

contracts inform sub-awardees of their 

right to carry out child welfare programs 

consistent with religious freedom, 

nondiscrimination, and conscience 

protections in Federal law, including 

the Free Speech and Free Exercise 

Clauses of the First Amendment of the 

U.S. Constitution, RFRA, or any related 

or similar Federal laws or regulations; 

and that religious accommodations may 

also be sought under many of these 

religious freedom, nondiscrimination, 

and conscience protection laws. 

A provider requesting any religious 

accommodation would submit the 

request to their state’s or tribe’s title IV– 

E/IV–B agency. If the request concerns 

a religious objection to an obligation 

that is required or necessitated by this 

proposed rule as finalized, the title IV– 

E/IV–B agency must promptly forward 

the request to ACF, which will consider 

the request in collaboration with the 

Office of the General Counsel. 

Kinship Caregivers 

A significant body of evidence 

demonstrates that when children in the 

foster care system are placed with 

kinship caregivers that they have better 

outcomes.56 We note that a title IV–E 

agency shall consider giving preference 

to an adult relative over a non-related 

caregiver when determining an out-ofhome placement for a child, provided 

that the relative caregiver meets all 

relevant state or tribal child protection 

standards (section 471(a)(19) of the Act). 

HHS invites public comment on how 

agencies can best comply with the 

requirements of this proposed rule and 

prioritize placements with kinship 

caregivers. In particular, HHS invites 

public comment on what resources 


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57 DeChants, J.P., Green, A.E., Price, M.N, & Davis, 

C.K. (2021), Homelessness and Housing Instability 

Among LGBTQ Youth.,West Hollywood, CA: The 

Trevor Project, https://www.thetrevorproject.org/ 

wp-content/uploads/2022/02/Trevor-ProjectHomelessness-Report.pdf; Amy Dworsky, 2013. 

‘‘The Economic Well-Being of Lesbian, Gay, and 

Bisexual Youth Transitioning Out of Foster Care,’’ 

Mathematica Policy Research Reports 

b2f4fb67aab149f9a5e75f558, Mathematica Policy 

Research; https://www.acf.hhs.gov/sites/default/ 

files/documents/opre/opre_lgbt_brief_01_04_

2013.pdf. 

58Substance Abuse and Mental Health Services 

Administration (SAMHSA): Moving Beyond Change 

Efforts: Evidence and Action to Support and Affirm 

LGBTQI+ Youth. SAMHSA Publication No. 

PEP2203–12–001. Rockville, MD: Center for 

Substance Abuse Prevention. Substance Abuse and 

Mental Health Services Administration, 2023. 

59Children’s Bureau, Guidance for Title IV–B and 

IV–E Agencies When Serving LGBTQI+ Children 

and Youth, March 2, 2022, https://www.acf.hhs.gov/ 

cb/policy-guidance/im-22-01. 

agencies may need from HHS to support 

kinship caregivers in caring for an 

LGBTQI+ child. 

Recruitment of Safe and Appropriate 

Providers 

In order to comply with the 

requirements in this proposed rule, we 

anticipate that a majority of states 

would need to expand their efforts to 

recruit and identify providers and foster 

families that the state or tribe could 

designate as safe and appropriate 

placements for a LGBTQI+ child to 

ensure that the totality of their child 

welfare system includes enough safe 

and appropriate placements to meet the 

needs of LGBTQI+ children in care. To 

support states and tribes in meeting 

these recruitment needs, ACF allows 

sharing costs between the Federal 

Government and state and tribal 

governments, providing Federal title IV– 

E funding for 50 to 75 percent of the 

administrative, recruitment and training 

costs of this NPRM. HHS invites public 

comment on how best we can support 

states and tribes in recruiting providers 

to provide safe and appropriate 

placements. 

V. Regulatory Process Matters 

Regulatory Planning and Review 

Executive Orders 12866, 13563, and 

14094 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 is 

supplemental to, and reaffirms the 

principles, structures, and definitions 

governing regulatory review as 

established in Executive Order 12866, 

emphasizing the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. Section 3(f) 

of Executive Order 12866, as amended 

by Executive Order 14094, defines ‘‘a 

significant regulatory action’’ as an 

action that is likely to result in a rule 

that may: (1) have an annual effect on 

the economy of $200 million or more 

(adjusted every 3 years by the 

Administrator of the Office of 

Information and Regulatory Affairs 

(OIRA) for changes in gross domestic 

product), or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or state, local, territorial, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raise legal or 

policy issues for which centralized 

review would meaningfully further the 

President’s priorities or the principles 

set forth in the order. OIRA has 

determined that this proposed rule does 

meet the criteria for a significant 

regulatory action under section 3(f) of 

Executive Order 12866. Thus, it was 

subject to Office of Management and 

Budget (OMB) review. 

Costs and Benefits 

The benefits of this NPRM are that 

placing children in foster care with 

providers the agencies designate as safe 

and appropriate for LGBTQI+ children 

will reduce the negative experiences of 

such children by allowing them to have 

access to needed care and services and 

to be placed in nurturing placement 

settings with caregivers who have 

received appropriate training. Ensuring 

such placements may also reduce 

LGBTQI+ foster children’s high rates of 

homelessness, housing instability and 

food insecurity.57 As thoroughly 

documented by SAMHSA, ‘‘[s]upportive 

family, caregivers, community, school, 

child welfare, and healthcare 

environments have been shown to 

positively impact both the short- and 

long-term health and well-being of 

LGBTQI+ youth.’’ 58 This proposed rule 

promotes a supportive environment for 

children in foster care who self-identify 

as LGBTQI+. 

ACF acknowledges that there will be 

a cost to implement changes made by 

this proposed rule as we anticipate that 

a majority of states would need to 

expand their efforts to recruit and 

identify providers and foster families 

that the state or tribe could designate as 

safe and appropriate placements for a 

LGBTQI+ child. This cost would vary 

depending on an agency’s available 

resources to implement an eventual 

final rule. To inform the final rule, ACF 

intends to seek comments on whether 

state and tribal agencies are likely to 

incur additional substantial costs. 

Alternatives Considered 

As an alternative to this NPRM, ACF 

considered providing sub-regulatory 

guidance requiring agencies to 

implement the provisions of the NPRM 

for children who identify as LGBTQI+. 

However, this alternative was rejected 

because it would not have the force of 

law and thus could not effectively 

ensure that LGBTQI+ children and 

youth in foster care receive appropriate 

placements and services. ACF has 

already provided extensive resources 

and sub-regulatory guidance to agencies 

about improving the health and 

wellbeing of LGBTQI+ children in foster 

care, but those resources alone have not 

been sufficient to ensure that LGBTQI+ 

youth are protected from mistreatment 

in foster care.59

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 proposed rule will not result in 

a significant impact on a substantial 

number of small entities. Therefore, an 

initial regulatory flexibility analysis is 

not required for this document. 

Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) (Pub. L. 104–4) was 

enacted to avoid imposing unfunded 

Federal mandates on state, local, and 


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60See QIC LGBTQ2S About the QIC, https://

qiclgbtq2s.org/about-the-qic/. 

61Also see Sexual & Gender Minority Youth in 

Foster Care: Assessing Disproportionality and 

Disparities in Los Angeles, 2014, https://

www.acf.hhs.gov/cb/report/sexual-gender-minorityyouth-foster-care-assessing-disproportionality-anddisparities-los, a project which received Children’s 

Bureau funding. 

tribal governments, or on the private 

sector. Section 202 of UMRA requires 

that agencies assess anticipated costs 

and benefits before issuing any rule 

whose mandates require spending in 

any 1 year of $100 million in 1995 

dollars, updated annually for inflation. 

In 2022, that threshold is approximately 

$177 million. This proposed rule does 

not contain mandates that will impose 

spending costs on state, local, or tribal 

governments in the aggregate, or on the 

private sector, in excess of the 

threshold. 

Assessment of Federal Regulations and 

Policies on Families 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 requires Federal agencies to 

determine whether a policy or 

regulation may negatively affect family 

well-being. If the agency determines a 

policy or regulation negatively affects 

family well-being, then the agency must 

prepare an impact assessment 

addressing seven criteria specified in 

the law. ACF believes it is not necessary 

to prepare a family policymaking 

assessment (see Pub. L. 105–277) 

because this proposed rule will not have 

a negative impact on the autonomy or 

integrity of the family as an institution. 

Executive Order 13132 

Executive Order 13132 requires 

Federal agencies to consult with state 

and local government officials if they 

develop regulatory policies with 

federalism implications. Federalism is 

rooted in the belief that issues that are 

not national in scope or significance are 

most appropriately addressed by the 

level of government close to the people. 

ACF conducted a regulatory impact 

analysis (RIA) to estimate costs, 

transfers, and benefits of provisions in 

the proposed rule. The cost of 

implementing changes made by this 

proposed rule would vary depending on 

a state’s specific situation and 

implementation choices. This proposed 

rule would not have substantial direct 

impact on the relationship between the 

Federal Government and the states, or 

on the distribution of power and 

responsibilities among the various 

levels of government. However, we 

anticipate that this proposed rule will 

have a substantial direct impact on the 

cost that title IV–E agencies will incur 

to implement administrative procedures 

and recruit and train their workforce 

and providers. Therefore, in accordance 

with section 6 of Executive Order 

13132, it is determined that this action 

has sufficient federalism implications 

that warrants the preparation of a 

federalism summary impact statement. 

Federalism Summary Impact Statement 

The Social Security Act requires 

agencies to provide children in foster 

care with safe and appropriate 

placements and services (42 U.S.C. 

675(1)(b)) and ensure that prospective 

foster parents are prepared adequately 

with the appropriate knowledge and 

skills to provide for the needs of the 

child (42 U.S.C. 671(a)(24)). ACF 

believes this proposed regulation is 

necessary to ensure children in foster 

care who identify as LGBTQI+ are 

provided appropriate placements and 

access to support services that address 

the well documented disparities that 

LGBTQI+ youth in foster care face. 

LGBTQI+ youth are overrepresented in 

the child welfare system, far too often 

experience trauma, including being 

placed in foster care or congregate care 

settings that are hostile to their identity, 

or lacking access to health care and 

mental health services to support them. 

This proposal may have federalism 

implications due to the substantial 

direct financial impact on state or local 

governments. Although ACF has not 

consulted directly with state or local 

governments prior to issuing this 

NPRM, ACF has spent years reviewing 

research and agency practices, and 

supporting pilot programs in this area. 

For example, the National Quality 

Improvement Center (QIC) on Tailored 

Services, Placement Stability, and 

Permanency for Lesbian, Gay, Bisexual, 

Transgender, Questioning, and TwoSpirit Children and Youth in Foster 

Care (LGBTQ2S+ QIC) was led by the 

Institute for Innovation & 

Implementation at the University of 

Maryland School of Social Work in 

Baltimore along with participating core 

partners: Human Service Collaborative, 

National Indian Child Welfare 

Association, Ruth Ellis Center, Tufts 

University, and Youth M.O.V.E. 

National.60 61 State and local 

governments may be concerned about 

the cost imposed by the NPRM. ACF has 

attempted to meet this concern by 

sharing costs between the Federal 

government and state governments, 

providing Federal title IV–E funding for 

50 to 75 percent of the administrative, 

recruitment and training costs of this 

NPRM. We also believe that after the 

first 3 years of implementation, the 

financial impact on state governments 

would be minimal. To inform the final 

rule, ACF will seek to further consult 

with state and local governments and 

request that such governments provide 

comments on provisions in the 

proposed rule and on whether state and 

local governments are likely to incur 

additional substantial costs. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(Pub. L. 104–13) seeks to minimize 

government-imposed burden from 

information collections on the public. In 

keeping with the notion that 

government information is a valuable 

asset, it also is intended to improve the 

practical utility, quality, and clarity of 

information collected, maintained, and 

disclosed. The Paperwork Reduction 

Act defines ‘‘information’’ as any 

statement or estimate of fact or opinion, 

regardless of form or format, whether 

numerical, graphic, or narrative form, 

and whether oral or maintained on 

paper, electronic, or other media (5 CFR 

1320.3(h)). This includes requests for 

information to be sent to the 

government, such as forms, written 

reports and surveys, recordkeeping 

requirements, and third-party or public 

disclosures (5 CFR 1320.3(c)). 

Information collection requirements 

for case plans required under title IV– 

E and IV–B are currently authorized 

under OMB number #0970–0428. This 

NPRM does not require changes to the 

existing information collection as there 

will be minimal burden associated with 

the proposed case plan requirements. 

Any additional costs would be minimal 

because agencies are already required to 

provide case review protections to 

children in foster care, and the NPRM 

simply provides more specificity for an 

LGBTQ child. While agencies will need 

to develop policies to comply with some 

of the provisions in the NPRM, the 

casework to provide safe placements, 

consult with children, and notify them 

of the procedures for reporting concerns 

or requests for placement changes is 

part of the agency’s ongoing work with 

a child in foster care. 

Information collection for the CFSR is 

currently authorized under OMB # is 

0970–0214. This NPRM does not 

significantly change or add burden to 

existing information collection 

requirements because the CFSR already 

includes reviewing case plan 

requirements for safe and appropriate 

placements and collecting information 

on the state’s case review system under 

the statewide assessment. Therefore, no 

revisions are needed in that collection. 


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Annualized Cost to the Federal 

Government 

ACF estimated that the proposed 

regulatory changes would cost the 

Federal Government $9,712,740 over 

three fiscal years (2025–2027). ACF 

estimated that the combined total 

Federal and agency costs over three 

fiscal years would be $40,834,548. 

The estimate for this NPRM was 

derived using fiscal year (FY) 2021 data 

from the Adoption and Foster Care 

Analysis and Reporting System 

(AFCARS) on children in foster care, FY 

2022 claiming data from the Form CB– 

496 ‘‘Title IV–E Programs Quarterly 

Financial Report (Foster Care, Adoption 

Assistance, Guardianship Assistance, 

Prevention Services and Kinship 

Navigator Programs),’’ National Child 

Abuse and Neglect Data System 

(NCANDS) child protection caseworker 

data collected between FY 2003 and FY 

2014, state surveys, and the U.S. 

Department of Labor Bureau of Labor 

Statistics (BLS). 

The portions of this NPRM’s 

requirements determined to have an 

identifiable impact on title IV–E/IV–B 

agency costs were as follows: 

• To comply with the requirement 

that all LGBTQI+ children in foster care 

have access to a safe and appropriate 

placement, agencies will likely need to 

increase the recruitment of providers 

who are qualified to provide safe and 

appropriate care. 

• Training agency caseworkers and 

supervisors on the procedural 

requirements in the NPRM and on how 

to adequately serve LGBTQI+ foster 

children, and training placement 

providers seeking to become designated 

as safe and appropriate placement 

providers on how to meet the needs of 

LGBTQI+ children in foster care, as 

required in the proposal. 

Assumptions: ACF made several 

assumptions when calculating 

administrative and training costs for this 

proposed rule. 

ACF assumes that quantifiable 

incremental costs with respect to the 

above activities will largely be incurred 

on behalf of children in foster care who 

are age 14 and older. ACF expects the 

population of children under age 14 

who meet the proposed requirements of 

paragraph (a)(2)(i)(A) or (B) to be 

relatively small, and therefore not likely 

to have a significant impact on cost. We 

are, however, accounting for the cost to 

recruit and train sufficient safe and 

appropriate placement providers to 

serve all children in need of such a 

placement regardless of age. This is 

accomplished by calculating 

recruitment and training costs using the 

maximum expected level of affirmative 

placement needs for children ages 14 

and older. 

We assume that states and tribes will 

not be able to use title IV–B funding to 

implement this NPRM if it becomes a 

final rule. Children in foster care who 

are not title IV–E eligible are also 

subject to the proposed requirements 

based on the proposed rule’s 

applicability to title IV–E and IV–B 

agencies. Title IV–B funding is available 

for 75 percent Federal financial 

participation (FFP) for recruitment and 

training of placement providers (42 

U.S.C. 624(a)). However, those funds are 

limited to an annual allotment provided 

to each title IV–B agency. Therefore, we 

assume agencies will likely need to 

cover 100 percent of the safe and 

appropriate placement provision costs 

on behalf of non-title IV–E eligible 

children in foster care. 

ACF assumes an overall annual one 

percent caseload growth rate in the 

foster care population based on our 

current title IV–E budgetary projections. 

Since this NPRM focuses on older 

children in foster care, we increased this 

growth rate slightly (to an average of 1.4 

percent annually) to consider an 

expected further growth in the age 18 

and older foster care population, as 

more states opt to extend foster care 

through age 20. 

ACF assumes that if the proposal 

becomes final, the requirements will 

become effective at the beginning of FY 

2025 and thus will apply to the entire 

population of children in foster care 

who are age 14 and older in that FY. 

This will result in the majority of 

incremental costs for the NPRM 

activities occurring in FY 2025. We 

expect costs in FYs 2026 and 2027 to be 

about half of those for FY 2025 since the 

required activities will affect primarily 

those children in care who are turning 

age 14 in the FY, or who are newly 

entering care at age 14 and older. After 

the third year of implementation, we 

anticipate that incremental costs will 

largely be eliminated as available safe 

and appropriate placement providers 

are recruited and the proposed policies, 

procedures, and training requirements 

are implemented. 

Federal cost estimate for 

implementation of safe and appropriate 

placements: The table below displays 

the individual calculations by line. All 

entries in the table and the narrative 

below are rounded to the nearest whole 

number. The calculations to obtain 

these amounts, however, were 

performed without applying rounding to 

the involved factor(s). 

Line 1. National number of children 

in foster care (FC). Line 1 of the table 

below displays the actual number of 

children in FC at the beginning of FY 

2022 (baseline), which was 391,098. 

Line 1 also displays estimates of the 

annual number of children in FC in the 

subsequent FYs 2025, 2026, and 2027. 

Line 2. National number of children 

in FC age 14 and older. Line 2 of the 

table below displays the actual number 

of children in FC who were age 14 and 

older at the beginning of FY 2022 

(baseline) which was 92,852. We also 

provide estimates of the number of 

children in FC age 14 and older in the 

following subsequent FYs 2025, 2026, 

and 2027. In 2027 the caseload is 

estimated at 104,705. 

Line 3. National average monthly 

number of children in title IV–E FC age 

14 and older. Line 3 of the table below 

displays the actual number of title IV– 

E eligible children in FC age 14 or older 

at the beginning of FY 2022 (baseline), 

which was 36,817. This number is 

calculated by applying the percentage of 

all children in FC (title IV–E and nonIV–E eligible) that are age 14 or older to 

the reported count of title IV–E eligible 

children receiving FC administrative 

cost services. For example, in FY 2022 

the title IV–E FC caseload for 

administrative costs was 155,075 and 

the percentage of all children in FC who 

were age 14 or older was 23.74 percent. 

Therefore, the calculated count of title 

IV–E eligible children in FC age 14 and 

older is 36,817 (155,075 × 23.74%). We 

also provide estimates of the number of 

children in FC age 14 and older in the 

following subsequent years: FYs 2025, 

2026, and 2027. 

Line 4. National number of children to 

be notified of safe and appropriate 

(S&A) placement requirements. Line 4 

of the table below provides an estimate 

of the number of children in FC who 

must be notified of the safe and 

appropriate placement provisions in 

proposed § 1355.22(a)(2)(i). For the first 

year of implementation (FY 2025) this 

number is the same as the Line 2 

number (national number of children in 

foster care age 14 and older) since all of 

these children are required to be so 

notified. For FYs 2026 and 2027, we 

multiplied the national number of 

children in FC age 14 and older (Line 

2) by the proportion of this population 

that entered care in that FY based on 

baseline year AFCARS data showing 

40.64 percent. This step avoids counting 

children that are likely to have already 

received the notification in a prior FY. 

For example, in FY 2027 the national 

number of children that must be 

notified of safe and appropriate 

placement requirements is 42,552 

(104,705 (Line 2) × 40.64% (Line 4) = 

42,552). 


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62Wilson, B.D.M., Cooper, K., Kastanis, A., & 

Nezhad, S. (2014), Sexual and Gender Minority 

Youth in Foster care: Assessing Disproportionality 

and Disparities in Los Angeles, The Williams 

Institute, UCLA School of Law https://

williamsinstitute.law.ucla.edu/wp-content/uploads/ 

SGM-Youth-in-Foster-Care-Aug-2014.pdf. 

63Matarese, M., Greeno, E., Weeks, A., 

Hammond, P. (2021). The Cuyahoga youth count: A 

report on LGBTQ+ youth’s experience in foster care. 

Baltimore, MD: The Institute for Innovation & 

Implementation, University of Maryland School of 

Social Work. https://theinstitute.umaryland.edu/ 

media/ssw/institute/Cuyahoga-YouthCount.6.8.1.pdf. 

Line 5. Percentage of national foster 

care placements for children needing 

S&A placements. Line 5 of the table 

below displays the estimated percentage 

of national foster care safe and 

appropriate placements needed for 

children who identify as LGBTQI+. For 

each FY, we divided the number of 

children in foster care ages 14 and older 

(Line 4) by the expected total annual 

number of children entering foster care. 

Data available through surveys shows 

that about 30 percent of older children 

in foster care identify as LGBTQI+. For 

example, a 2014 survey of children ages 

12 through 21 in foster care in Los 

Angeles County, California, found that 

19 percent of children in foster care 

identified as LGBTQI+.62 Similarly, a 

2021 study of foster children ages 12 

through 21 in Cuyahoga County, Ohio, 

found that 32 percent identified as 

LGBTQI+.63 For the purposes of this 

cost estimate, ACF’s estimate of 

children age 14 and over in foster care 

who identify as LGBTQI+ is 30 percent. 

For example, in FY 2025 on Line 4, the 

national number of children to be 

notified of safe and appropriate 

placement provisions is 97,973 and the 

base year total foster care entries is 

206,812. ACF estimated 30 percent of 

older children in foster care identify as 

LGBTQI+. Therefore, Line 5, the 

percentage of national foster care 

placements for LGBTQI+ children 

needing safe and appropriate 

placements, is 14.2 percent ((97,973 × 

30%) ÷ 206,812). This estimate is 

purposefully high to account for some 

children under age 14 who may also 

need such safe and appropriate 

placements. 

Line 6. Total incremental costs 

(Federal and non-Federal) for recruiting 

safe and appropriate foster care 

placements. Line 6 of the table below 

displays the estimated total cost of 

recruiting placement providers to meet 

the proposed requirements for safe and 

appropriate placement providers for 

LGBTQI+ children in the foster care 

system. This estimate for each FY is 

based on data collected from ten title 

IV–E/IV–B agencies across the Nation 

with respect to their current annual 

budgets for foster care recruitment 

activities. We used this data to calculate 

a nationwide total estimated annual 

foster care recruitment cost of 

$185,998,176 based on an extrapolation 

of the provided data using FY 2022 

foster care caseload information. This 

figure was then multiplied by the 

calculated portion of the FC caseload 

ages 14 and older, and then further 

reduced to 30 percent of that number 

(estimated LGBTQI+ identification 

percentage) to reflect the maximum 

anticipated need for new safe and 

appropriate placements in each FY. The 

resulting amount was then reduced by 

another 50 percent to reflect the 

likelihood that a significant portion of 

the safe and appropriate placement 

recruitment budget would be obtained 

by refocusing the existing budget for 

recruitment costs towards safe and 

appropriate placements. This would 

promote the agency’s ability to comply 

with the proposed requirement in 

paragraph (a)(1), given agency 

recruitment budgets may be limited. 

For example, in FY 2025 we estimate 

that up to 30 percent of notified 

children (Line 4) as a percentage of all 

newly placed children in that FY may 

require the availability of a placement 

that is designated by the agencies as safe 

and appropriate. This percentage for FY 

2025 of 14.2 percent (29,392 ÷ 206,812) 

is then multiplied by the national 

estimated foster care recruitment cost 

budget ($185,998,176) resulting in a 

total of $26,433,752. This figure is then 

reduced by 50 percent to reflect the 

anticipated incremental cost for safe and 

appropriate placement provider 

recruitment efforts of $13,216,876. This 

estimate is purposefully high to account 

for some children under age 14 who 

may also need safe and appropriate 

placements. The total cost for FYs 2025, 

2026, and 2027 is $24,521,626. 

Line 7. Total costs (Federal and nonFederal) for safe and appropriate 

placement training (caseworkers, 

supervisors & providers). Line 7 of the 

table below provides the estimated total 

cost of training required for safe and 

appropriate placements. This estimate 

for each FY is derived by first 

identifying the baseline cost of 

providing a model SOGIE training 

curriculum developed by the National 

Quality Improvement Center on 

Tailored Services, Placement Stability, 

and Permanency for LGBTQ2S Children 

and Youth in Foster Care (QIC– 

LGBTQ2S); a project funded by ACF. 

This curriculum provides for a two-hour 

training that can be conducted in-person 

or remotely for an average group of 30 

participants. The identified average cost 

of delivering this training is $300 plus 

overhead of 100 percent bringing the 

total cost to $600 or $20 per participant. 

Our estimate increases this figure by 

three percent per year to account for 

inflation. 

We estimate the number of 

caseworker and casework supervisor 

(staff) in FY 2025 to be 100 percent of 

individuals in these positions. National 

foster care caseworker staffing level data 

was obtained from reports provided by 

six state title IV–E/IV–B agencies 

representing about 16 percent of the 

national FY 2021 foster care population. 

This data was then extrapolated using 

FC caseloads to obtain an estimate of the 

total number of national FC caseworkers 

in FY 2021. An estimated annual 

caseworker growth rate of +2.2 percent 

was also computed using national 

NCANDS child protection caseworker 

data collected between FY 2003 and FY 

2014. This data results in an estimated 

FY 2025 national total of 38,374 FC 

caseworkers. The casework supervisor 

count uses the generally applied ratio of 

one supervisor for five workers resulting 

in an FY 2025 number of 7,675. The 

provider trainee population is 

calculated by using the count of 

children to be notified of safe and 

appropriate placement provisions (Line 

4) multiplied by 30 percent (maximum 

expected portion of these children 

identifying as LGBTQI+) and is then 

further reduced by the expectation that 

each provider will, on average, serve 1.5 

children. This results in an FY 2025 safe 

and appropriate placement provider 

trainee population of 22,044. The 

expected number of trainees for 

subsequent FYs is lower based on the 

expected number of newly placed 

children in each of these FYs. 

Other costs included in the training 

estimate are staff participation costs and 

travel and per diem for in-person 

trainings conducted outside of the local 

area. Staff participation costs include 

salary and overhead for each worker 

spent in the training (two hours). 

Caseworker title average salary data (as 

of May 2022) sourced from the U.S. 

Department of Labor; Bureau of Labor 

Statistics (BLS) was used in the 

calculation along with an estimated 

overhead cost rate of 100 percent. This 

results in an FY 2022 (baseline) hourly 

cost (salary + overhead) of $55.98. The 

cost for two hours of activity is thus 

$111.97 per participant. A cost-of-living 

adjustment of +2 percent per year is 

than added for each subsequent year. 

Travel and per diem costs are estimated 

in FY 2022 (base year) as $100 per 

participant at in-person trainings which 

are expected to constitute 50 percent of 

total trainings. An inflation factor of 


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three percent per year is applied to 

these costs for later FYs. For example, 

in FY 2025 we expect a total of 68,092 

trainees (caseworkers, supervisors & 

foster care providers). Therefore, the 50 

percent of that total expected to have 

travel & per diem costs is 34,046 

trainees. At an average cost of $109 per 

participant the total cost in this category 

is $3,711,035. The total FY 2025 

estimate for safe and appropriate 

placement training is $10,137,404. This 

amount lowers to $3,180,036 for FY 

2027. The total cost for FYs 2025, 2026, 

and 2027 is $16,312,223. 

Line 8. Total costs (Federal and nonFederal) for all safe and appropriate 

placement activities. Line 8 displays the 

annual estimated total (Federal + nonFederal) costs for all recruitment and 

training activities for LGBTQI+ 

children. This is the sum of lines 6 and 

7. We estimate these total costs in FY 

2025 as $23,354,280 and the total cost 

for FYs 2025, 2026, and 2027 is 

$40,834,548. 

Line 9. Total title IV–E FFP for all safe 

and appropriate placement activity 

costs. Line 9 displays the annual 

estimated total title IV–E Federal share 

of costs for all placement activities for 

LGBTQI+ children. This is calculated by 

applying the applicable match rate and 

the estimated title IV–E participation 

(eligibility) rate that is generally used to 

allocate foster care administrative costs. 

Title IV–E agencies may claim FFP for 

50 percent of the administrative costs 

that agencies incur to provide for 

activities performed on behalf of title 

IV–E eligible children in foster care, 

recruitment of foster homes and CCIs, 

and certain other administrative 

activities identified in 45 CFR 1356.60. 

The agency must pay the remaining 50 

percent non-Federal share of title IV–E 

administrative costs with state or tribal 

funds. 

Title IV–E agencies may claim 

reimbursement for 75 percent of 

allowable training costs to provide for 

activities performed on behalf of title 

IV–E eligible children in foster care 

including training of agency 

caseworkers and supervisors (including 

staff participation costs) and training of 

foster care providers providing care to 

title IV–E eligible children. The title IV– 

E agency must pay the remaining 25 

percent non-Federal share of title IV–E 

training costs with state or tribal funds. 

For example, the FY 2025 amount is 

calculated by using the FY 2025 

estimated title IV–E foster care 

participation rate of 39.65 percent along 

with the applicable FFP rates of 50 

percent for administrative costs and 75 

percent for training costs. We estimate 

these total title IV–E FFP costs 

beginning in FY 2025 as $5,635,017 and 

the total cost for FYs 2025, 2026, and 

2027 is $9,712,740. 

Line 10. Total title IV–E non-Federal 

share for all safe and appropriate 

placement activity costs. Line 10 

displays the annual estimated total title 

IV–E non-Federal (state or tribe) share of 

costs for all safe and appropriate 

placement activities for LGBTQI+ 

children. This is calculated by applying 

the applicable non-Federal share match 

rate and the estimated non-IV–E 

participation (eligibility) rate that is 

generally used to allocate foster care 

administrative costs. For example, the 

FY 2025 amount is calculated by using 

the FY 2025 estimated title IV–E foster 

care participation rate of 39.65 percent 

along with the applicable non-Federal 

share matching rates of 50 percent for 

administrative costs and 25 percent for 

training costs. We estimate these total 

title IV–E non-Federal share costs 

beginning in FY 2025 as $3,625,219 and 

the total cost for FYs 2025, 2026, and 

2027 is $6,478,612. 

Line 11. Total title IV–B non-Federal 

share for all safe and appropriate 

placement activity costs. Line 11 

displays the annual estimated total title 

IV–B non-Federal (state or tribe) share of 

costs for all safe and appropriate 

placement activities. This is calculated 

by deducting such placement activity 

costs that are allocable to title IV–E from 

such total costs. Although costs 

allocated to title IV–B are subject to 

Federal matching at the 75 percent rate, 

as explained previously we assume that 

none of these costs will be federally 

reimbursed through title IV–B due to the 

limited annual allotments for the title 

IV–B program. Therefore, agencies may 

need to fund the cost entirely from state 

or tribal funds or other sources of 

funding. We estimate these total title 

IV–B non-Federal share costs beginning 

in FY 2025 as $14,094,043 and the total 

cost for FYs 2025, 2026, and 2027 is 

$24,643,197. 

Line 12. Total title IV–E and IV–B 

non-Federal share for all safe and 

appropriate placement activity costs. 

Line 12 displays the annual estimated 

total title IV–E and IV–B non-Federal 

share of costs for all safe and 

appropriate placement activities. This is 

the sum of amounts on Lines 10 and 11. 

We estimate these total title IV–E and 

IV–B non-Federal share costs beginning 

in FY 2025 as $17,719,263 and the total 

cost for FYs 2025, 2026, and 2027 is 

$31,121,809. 

Year 2022 

(baseline) 2025 2026 2027 Three-year total 

1. National number of children in foster care (FC) ........................................................... 391,098 404,273 410,541 416,548 ......................

2. National number of children in FC age 14 and older ................................................... 92,852 97,973 101,482 104,705 ......................

3. National average monthly number of children in title IV–E FC age 14 and older ....... 36,817 38,847 40,239 41,517 ......................

4. National number of children to be notified of safe and appropriate (S&A) placement 

provisions ....................................................................................................................... N/A 97,973 41,244 42,554 ......................

5. Percentage of national FC placements for children needing S&A placements ........... N/A 14.2% 6.0% 6.2% ......................

6. Total incremental costs (Federal and non-Federal) for S&A placement recruitment .. N/A $13,216,876 $5,564,006 $5,740,744 $24,521,626 

7. Total costs (Federal and non-Federal) for S&A placement training (caseworkers, supervisors & providers) ................................................................................................... N/A $10,137,404 $2,995,483 $3,180,036 $16,312,223 

8. Total Federal and non-Federal costs for all S&A placement activities (Lines 6+7) ..... N/A $23,354,280 $8,559,488 $8,920,780 $40,834,548 

9. Total title IV–E FFP for all S&A placement activity costs ............................................ N/A $5,635,017 $1,993,899 $2,083,823 $9,712,740 

10. Total title IV–E non-Federal share for S&A placement activity costs ........................ N/A $3,625,219 $1,400,029 $1,453,364 $6,478,612 

11. Total title IV–B non-Federal share for S&A placement activity costs ........................ N/A $14,094,043 $5,165,561 $5,383,593 $24,643,197 

12. Total titles IV–E and IV–B non-Federal share for S&A placement activity costs 

(Lines 10+11) ................................................................................................................ N/A $17,719,263 $6,565,589 $6,836,957 $31,121,809 

VI. Tribal Consultation Statement 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments, requires agencies to 

consult with Indian tribes when 

regulations have substantial direct 

effects on one or more Indian tribes, on 

the relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes and 

either impose substantial direct 

compliance costs on tribes or preempt 

tribal law. Similarly, ACF’s Tribal 

Consultation Policy says that 

consultation is triggered for a new rule 

adoption that significantly affects tribes, 


ddrumheller on DSK120RN23PROD with PROPOSALS1
66768 Federal Register / Vol. 88, No. 187 / Thursday, September 28, 2023 / Proposed Rules 

meaning the new rule adoption has 

substantial direct effects on one on more 

Indian Tribes, on the amount or 

duration of ACF program funding, on 

the delivery of ACF programs or 

services to one or more Indian tribes, or 

on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. This 

proposed rule does not meet either 

standard for consultation. 

Some title IV–E/IV–B tribal agencies 

may need to amend their practices to 

ensure that a placement is available for 

and provided to an LGBTQI+ child in 

foster care that supports the child’s 

identity. However, we do not expect the 

costs to be substantial. Tribal title IV– 

E agencies may claim FFP for title IV– 

E foster care administrative and training 

costs for a portion of the administrative 

costs incurred. We intend to notify 

tribal title IV–E/IV–B agency leadership 

about the opportunity to provide 

comment on the NPRM no later than the 

day of publication. In addition, we 

intend to engage in consultation with 

tribes during the comment period of this 

NPRM. 

Jeff Hild, Acting Assistant Secretary of 

the Administration for Children & 

Families, approved this document on 

September 22, 2023. 

(Catalog of Federal Domestic Assistance 

Program Number 93.658, Foster Care 

Maintenance; 93.645, Child Welfare 

Services—State Grants). 

List of Subjects in 45 CFR Part 1355 

Adoption and foster care, Child 

welfare, Grant programs—social 

programs. 

Dated: September 25, 2023. 

Xavier Becerra, 

Secretary, Department of Health and Human 

Services. 

For the reasons set forth in the 

preamble, ACF proposes to amend 45 

CFR part 1355 as follows: 

PART 1355—GENERAL 

■ 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. 

■ 2. Add § 1355.22 to read as follows: 

§ 1355.22 Placement requirements under 

titles IV–E and IV–B for children who 

identify as lesbian, gay, bisexual, 

transgender, queer or questioning, intersex, 

as well as children who are non-binary or 

have non-conforming gender identity or 

expression. 

(a) Protections. The title IV–E/IV–B 

agency must meet the following 

requirements for each child in foster 

care who identifies as lesbian, gay, 

bisexual, transgender, queer or 

questioning, or intersex, as well as each 

child who is non-binary or has nonconforming gender identity or 

expression (LGBTQI+). 

(1) Safe and appropriate placement. 

The title IV–E/IV–B agency must ensure 

that a safe and appropriate placement is 

available for and provided to all 

children in foster care, including those 

who identify as LGBTQI+. As used in 

this section, for a placement to be 

considered safe and appropriate for an 

LGBTQI+ child, the agency must place 

such child with a placement provider 

that: 

(i) Will establish an environment free 

of hostility, mistreatment, or abuse 

based on the child’s LGBTQI+ status; 

(ii) Is trained to be prepared with the 

appropriate knowledge and skills to 

provide for the needs of the child 

related to the child’s self-identified 

sexual orientation, gender identity, and 

gender expression. The training must 

reflect evidence, studies, and research 

about the impacts of rejection, 

discrimination, and stigma on the safety 

and wellbeing of LGBTQI+ children, 

and provide information for providers 

about practices that promote the safety 

and wellbeing of LGBTQI+ children; 

and 

(iii) Will facilitate the child’s access to 

age-appropriate resources, services, and 

activities that support their health and 

well-being. 

(2) Process for requesting safe and 

appropriate placement. The IV–E/IV–B 

agency must implement a process by 

which a child identifying as LGBTQI+ 

may request a safe and appropriate 

placement, as described in paragraph 

(a)(1) of this section. The title IV–E/IV– 

B agency must consult with such child 

to provide an opportunity to provide 

input into their safe and appropriate 

placement. The process must safeguard 

the privacy and confidentiality of the 

child, consistent with section 471(a)(8) 

of the Act and 45 CFR 205.50, and must 

include the following components: 

(i) Notice of the availability of safe 

and appropriate placements must be 

provided to, at minimum: 

(A) All children age 14 and over; and 

(B) Children under age 14 who: 

(1) Have been removed from their 

home due, in whole or part, to familial 

conflict about their sexual orientation, 

gender identity, or sex characteristics; or 

(2) Have disclosed their LGBTQI+ 

identity or whose LGBTQI+ identity is 

otherwise known to the agency; 

(ii) The notice must be provided in an 

age-appropriate manner, both verbally 

and in writing; and 

(iii) The notice must inform the child 

of how they may request a safe and 

appropriate placement. 

(3) Process for reporting concerns 

about placements. The title IV–E/IV–B 

agency must implement a process for 

children identifying as LGBTQI+ to 

report concerns about any placements 

that fail to meet the requirements of 

paragraph (a)(1) of this section. The 

process must safeguard the privacy and 

confidentiality of the child, consistent 

with section 471(a)(8) of the Act and 45 

CFR 205.50, and must include the 

following components: 

(i) The title IV–E/IV–B agency must 

notify all children who meet the 

requirements of paragraphs (a)(2)(i)(A) 

and (B) of this section of the availability 

of this process; 

(ii) The notice must be provided in an 

age-appropriate manner, both verbally 

and in writing; and 

(iii) The title IV–E/IV–B agency must 

respond promptly to an LGBTQI+ 

child’s reported concern, consistent 

with the agency’s timeframes for 

investigating child abuse and neglect 

reports depending on the nature of the 

child’s report. 

(4) Retaliation prohibited. The title 

IV–E/IV–B agency must have a 

procedure to ensure that no LGBTQI+ 

child in foster care experiences 

retaliation for the child disclosing their 

LGBTQI+ identity, for requesting a safe 

and appropriate placement as described 

in paragraph (a)(1) of this section, or for 

reporting concerns that their current 

placement is not safe and appropriate. 

Retaliation includes unwarranted 

placement changes including 

unwarranted placements in congregate 

care facilities, restriction of access to 

LGBTQI+ peers, or attempts to 

undermine, suppress, or change the 

sexual orientation or gender identity of 

a child, or other activities that 

stigmatize a child’s LGBTQI+ identity. 

(5) Access to supportive and ageappropriate services. The title IV–E/IV– 

B agency must ensure that children who 

identify as LGBTQI+ have access to ageappropriate services that are supportive 

of their sexual orientation and gender 

identity, including clinically 

appropriate mental and behavioral 

health supports. 

(b) Placement of transgender and 

gender non-conforming children in 

foster care. When considering placing a 

transgender, gender non-conforming or 

intersex child in sex segregated childcare institutions, the title IV–E/IV–B 

agency must place the child consistent 

with their gender identity. The IV–E/IV– 

B agency must also consult with the 

transgender, gender non-conforming, or 

intersex child to provide an opportunity 


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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 


ddrumheller on DSK120RN23PROD with PROPOSALS1