[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Proposed Rules]
[Pages 66769-66780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20932]


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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).

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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:
    <bullet> Federal Rulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#3f7c7d7c5052525a514b4c7f5e5c591157574c11585049"><span class="__cf_email__" data-cfemail="034041406c6e6e666d7770436260652d6b6b702d646c75">[email protected]</span></a>. 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 <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="630001000c0e0e060d1710230200054d0b0b104d040c15">[email protected]</a>.

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

[[Page 66770]]

[title IV-E] plan.'' This authorization applies to an Indian tribe, 
tribal organization, or tribal consortium that has an approved title 
IV-E plan, in the same manner as it applies to states.

II. Background

    Many families that come to the attention of a child welfare agency 
are in the midst of or recovering from familial, health, housing, or 
economic challenges or crises. These obstacles can impede a family's 
ability to provide a safe and stable environment for their children. 
Access to independent legal representation can help stabilize families 
and reduce the need for more formal child welfare system involvement, 
including foster care. For families with children that have been placed 
in foster care, independent legal representation can expedite 
reunification and improve permanency or help provide access to needed 
supports for youth transitioning out of the child welfare system. For 
Indian children that have been placed in foster care, and their 
families, early representation of an Indian child's tribe in foster 
care proceedings promotes stability for the child by minimizing 
unnecessary separation of children and their parents, and by maximizing 
placements of the child with extended family and other preferred 
placements.
    The Indian Child Welfare Act (ICWA) and regulations allow an Indian 
child's tribe to intervene in any state court proceeding for the foster 
care placement of, or termination of parental rights to, an Indian 
child (25. U.S.C. 1911(c)). ``Indian child,'' means any unmarried 
person who is under age eighteen and is either a member of an Indian 
tribe or is eligible for membership in an Indian tribe and is the 
biological child of a member of an Indian tribe (25 U.S.C. 1903(4)). An 
``Indian child's tribe'' means the Indian tribe in which an Indian 
child is a member or eligible for membership or, in the case of an 
Indian child who is a member of or eligible for membership in more than 
one tribe, the Indian tribe with which the Indian child has the more 
significant contacts (25 U.S.C. 1903(5)).
    The regulation at 45 CFR 1356.60(c) details cost-sharing 
requirements for the Federal and non-Federal share of title IV-E foster 
care program expenditures for the cost of administrative activities. A 
title IV-E agency may claim FFP at the rate of 50 percent for allowable 
title IV-E foster care administrative costs. A title IV-E agency may 
also claim FFP for allowable administrative costs incurred by any other 
public agency or tribe which has an agreement in effect under which the 
other agency has placement and care responsibility of a title IV-E 
eligible child pursuant to 472(a)(2)(B)(ii) of the Act. Another 
``public agency'' is child placing agency authorized by state/tribal 
law to operate a program of services to children and families, with 
supervision by the title IV-E agency (CWPM 8.1G #1). Examples of other 
public agencies may be found in section G of the Child Welfare Policy 
Manual, and could include the state/tribal juvenile justice agency, a 
court, or state/tribal mental health agency. The regulation at Sec.  
1356.60(c)(2) provides examples of allowable title IV-E foster care 
administrative expenditures that are necessary for the administration 
of the title IV-E agency's plan, such as preparation for and 
participation in judicial determinations, referral to services, 
development of the case plan, case reviews, and case management and 
supervision.
    ACF policy historically allowed title IV-E agencies to claim FFP 
for the foster care administrative costs of ``preparation for and 
participation in judicial determinations'' as described in Sec.  
1356.60(c)(2)(ii), only for the title IV-E agency's (and if applicable, 
the tribe or other public agency's) legal representation. However, in 
2019, ACF revised the policy to allow title IV-E agencies to also claim 
FFP for the administrative costs of independent legal representation 
provided by attorneys representing children who are candidates for 
title IV-E foster care, children who are in title IV-E foster care 
(hereafter, ``child who is eligible for title IV-E foster care'' refers 
to both a child who is a candidate and child who is in foster care), 
and the children's parent(s) in all stages of foster care legal 
proceedings (Child Welfare Policy Manual [CWPM] 8.1B #30, 31, and 32). 
This policy was revised to ensure that reasonable efforts are made to 
prevent removal and finalize the permanency plan; and parents and youth 
are engaged in and complying with case plans. A ``candidate'' for title 
IV-E foster care is a child who is potentially eligible for title IV-E 
foster care maintenance payments and is at serious risk of removal from 
home as evidenced by the title IV-E agency either pursuing the child's 
removal from the home or making reasonable efforts to prevent such 
removal (section 472(i) of the Act). Further, the agency must document 
the child's candidacy for title IV-E foster care maintenance payments 
through one of the three acceptable methods identified in the Child 
Welfare Policy Manual, such as a case plan. (CWPM 8.1D #2) A child is 
not considered a candidate for title IV-E foster care when the title 
IV-E agency has no formal involvement with the child or simply because 
the child has been described as ``at risk'' due to circumstances such 
as social or interpersonal problems or a dysfunctional home environment 
(CWPM 8.1D). This policy change was well received and generated 
positive interest from title IV-E agencies and child welfare and legal 
stakeholders.
    This NPRM proposes to codify and expand the policy in CWPM 8.1B 
#30, 31, and 32. Recent research, as described in the Section-by-
Section, demonstrates that providing independent legal representation 
early in foster care proceedings and other civil legal proceedings can 
help prevent children from entering foster care, and for youth already 
in foster care, can improve the rate of reunification and result in 
more permanent outcomes for the child and the family. Therefore, this 
NPRM proposes that providing independent legal representation to a 
child who is eligible for title IV-E foster care, their parent(s), and 
their relative caregiver(s) to prepare for and participate in civil 
legal proceedings is an allowable administrative cost when necessary to 
carry out the requirements in the agency's title IV-E foster care plan 
in accordance with section 471(a) of the Act.

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

Section 1356.60

    ACF proposes to revise Sec.  1356.60(c) to add a new paragraph (4) 
providing examples of allowable administrative costs for legal 
representation and add a new paragraph (c)(2)(xi) to include a 
reference to paragraph (4).
    In a new paragraph (4)(i), we propose to clarify that a title IV-E 
agency may claim administrative costs for legal representation when 
incurred by the title IV-E agency, or any other public agency or tribe 
that has an agreement with the title IV-E agency for placement and care 
responsibility of a title IV-E eligible child under section 
472(a)(2)(B)(ii) of the Act in foster care proceedings. This proposal 
is not new as regulations currently allow this cost under the example 
of preparing for and participating in judicial determinations. We are 
specifying this type of legal representation for agency attorneys as a 
separate example of allowable costs and to make clear that it 
encompasses public agencies and tribes that have an agreement under 
section 472(a)(2)(B)(ii) of the Act with the title IV-E agency.
    In a new paragraph (4)(ii), we propose that a title IV-E agency may 
claim FFP for administrative costs of independent

[[Page 66771]]

legal representation provided by an attorney representing a child who 
is eligible for title IV-E foster care, their parent(s), and their 
relative caregiver(s), to prepare for and participate in foster care 
and other civil legal proceedings necessary to carry out the 
requirements in the agency's title IV-E foster care plan. We are also 
proposing that legal representation in civil legal proceedings may 
include facilitating, arranging, brokering, advocating, or otherwise 
linking clients with providers and services as identified in the 
child's case plan pursuant to section 475(1) of the Act. Consistent 
with Children's Bureau policy, a title IV-E agency may claim title IV-E 
administrative costs of paralegals, investigators, peer partners or 
social workers that support an attorney providing such independent 
legal representation to the extent that they are necessary to support 
the attorney. Under title IV-E of the Act, the term ``parent(s)'' means 
a biological or adoptive parent(s) or legal guardian(s), as determined 
by applicable state or tribal law (section 475(2) of the Act). The term 
``legal guardianship'' means a judicially created relationship between 
child and caretaker (legal guardian) which is intended to be permanent 
and self-sustaining as evidenced by the transfer to the caretaker of 
the following parental rights with respect to the child: protection, 
education, care and control of the person, custody of the person, and 
decision making (section 475(7) of the Act). Therefore, this NPRM 
proposes that title IV-E agencies may claim allowable administrative 
costs of independent legal representation for a legal guardian(s) of a 
child eligible for title IV-E foster care, if state or tribal law 
considers a legal guardian(s) a parent(s), and consistent with Federal 
law, such legal guardian(s) is intended to be the permanent caretaker 
of the child.
    Under this proposal, title IV-E agencies will also be allowed to 
claim administrative costs for independent legal representation 
provided to relative caregivers, even when those relative caregivers 
are not a foster child's legal guardian. For purposes of claiming the 
cost of independent legal representation provided to the relative 
caregiver of a child who is eligible for title IV-E foster care, the 
title IV-E agency may define the term ``relative.'' For example, a 
title IV-E agency may define relative to include kin and ``fictive-
kin.''
    Finally, in paragraph (c)(2) we propose to add a new paragraph (xi) 
referencing the proposed new paragraph (4) to clarify that such legal 
representation is an allowable administrative cost.
    This NPRM proposes that the title IV-E agency may determine what 
`independent' means for purposes of providing such legal 
representation. However, at a minimum, such legal representation should 
be provided by an attorney who: does not have a concurrent conflict of 
interest, such as when the representation of one client will be 
directly adverse to the lawyer's responsibilities to another client, a 
former client or a third person; does not accept compensation for 
representing a client from someone other than the client unless the 
client gives informed consent; and there is no interference with the 
lawyer's independence of professional judgment or with the client-
lawyer relationship.
    Many families involved in the child welfare system encounter 
barriers to accessing services that can help them overcome family, 
health, or economic challenges or crises. Such challenges or crises may 
include loss of employment, inadequate income, unstable housing or 
homelessness, food insecurity, mental health and/or substance misuse 
disorders, and family violence. These crises can impede a family's 
ability to provide a safe and stable environment for their children 
(ACYF-CB-IM-21-02, p.2; ACYF-CB-IM-21-06 p. 12), which can lead to 
placement in foster care or delayed permanency when the family is not 
prepared for a child to return home. For example, of all children that 
entered foster care in Federal fiscal year (FY) 2021, 63 percent of 
removals were related to neglect (including failure to provide adequate 
food, clothing, shelter, and supervision or care by a person who is 
responsible for the child's welfare). Nine percent were experiencing 
housing issues at the time of removal (Adoption and Foster Care 
Analysis and Reporting System (AFCARS) FY 2021 Report). In 2020, a 
peer-reviewed journal article conducted a systematic search of peer-
reviewed studies conducted in the U.S. regarding the association of 
housing stress with child maltreatment. The literature indicates 
indicate that ``housing stress is associated with an increased 
likelihood of caregiver or child self-reported maltreatment, child 
protective services (CPS) reports, investigated and substantiated CPS 
reports, out-of-home placements, and maltreatment death (Chandler CE, 
Austin AE, Shanahan ME. Association of Housing Stress With Child 
Maltreatment: A Systematic Review. Trauma Violence Abuse. 2022 
Apr;23(2):639-659. doi: 10.1177/1524838020939136. Epub 2020 Jul 17. 
PMID: 32677550; PMCID: PMC7855012).
    Preventing a child from being removed from their home is critical 
to a child's well-being because removal, even for a short period of 
time, exposes the child to a range of trauma and stress (Sankaran, 
Vivek. ``Using Preventive Legal Advocacy to Keep Children from Entering 
Foster Care.'' Wm. Mitchell L. Rev. 40, (3): 1036-1047, 2014). A child 
who is at risk of entering foster care has better outcomes when they 
remain at home compared to when they are placed into foster care 
(Joseph J. Doyle, Jr. ``Causal Effects of Foster Care: An Instrumental 
Variables Approach.'' Children and Youth Services Review 35(7): 1143-
1151, 2013.).
    Research demonstrates that providing independent legal 
representation in foster care and other civil legal proceedings can 
minimize some of these barriers that contribute to bringing families 
with children at risk of entering foster care in contact with the child 
welfare system and may help prevent children from entering foster care 
(Sankaran, Vivek. ``Using Preventive Legal Advocacy to Keep Children 
from Entering Foster Care.'' Wm. Mitchell L. Rev. 40, (3): 1036-1047, 
2014). One recent study showed that when parents are represented by an 
interdisciplinary law office with legal specialists to assist with 
immigration, benefits, criminal, housing, or other concerns, children 
placed in foster care were safely returned to their families about 43 
percent more often in the first year, children's time in foster care 
was reduced by nearly four months, and families were no more likely to 
experience a subsequent substantiated report of maltreatment (Gerber, 
Lucas A., Pang, Yuk C., Ross, Timothy, Guggenheim, Martin, Pecora, 
Peter J., & Miller, Joel. ``Effects of an interdisciplinary approach to 
parental representation in child welfare,'' Children and Youth Services 
Review, Volume 102, 2019, Pages 42-55, ISSN 0190-7409, https://doi.org/10.1016/j.childyouth.2019.04.022).
    Outcome data from legal service programs and pilot projects 
demonstrate that providing independent legal representation to address 
a family's civil legal issues results in a high success rate for 
preventing children from entering foster care and for children who are 
in foster care, expediting permanency (American Bar Association Center 
on Children and the Law & National Council of Juvenile and Family Court 
Judges. Supporting Early Legal Advocacy before Court Involvement in 
Child Welfare Cases (March, 2021). For example:
    <bullet> The Detroit Center for Family Advocacy conducted a pilot 
program to

[[Page 66772]]

provide independent legal representation to address civil legal issues 
for families in which a child has been found abused or neglected. 
Typically, lawyers filed for a restraining order, drafted a power of 
attorney, filed for a guardianship, applied for public benefits, or 
helped with special-education entitlements. Of the 55 families who were 
caring for 110 children served, none of the children entered foster 
care. (Detroit Center for Family Advocacy Pilot Evaluation report July 
2009-June 2012; Sankaran, Vivek. Case Closed: Addressing Unmet Legal 
Needs and Stabilizing Families. M.L. Raimon, co-author. Center for the 
Study of Social Policy [2014] [Detroit model project])
    <bullet> Iowa Legal Aid is piloting an early representation program 
for parents before petitions are filed. The program assists with 
private guardianship, custody, protective orders, landlord/tenant 
disputes, and appeals of denials of public benefits. Outcome data from 
2018 show the program, in four counties, prevented over 100 children 
from becoming court involved (Family Justice Initiative. Implementing 
FJI System Attributes, Attribute 4: Timing of Appointment, 2020.; Iowa 
Legal Aid. Parent Representation Project, undated.).
    <bullet> Legal Services of New Jersey has operated a pre-petition 
representation program since 2018. The cases are referred by the child 
welfare agency and typically involve representation around public 
benefits and access to affordable housing, child support and custody 
issues, and school-related issues. Outcome data indicate that by 2020, 
the program had prevented 200 removals (Implementing FJI System 
Attributes, Attribute 4: Timing of Appointment, 2020.).
    <bullet> The Washington Family Intervention Response to Stop Trauma 
Clinic provides pre-petition representation to parents of substance-
exposed infants. The program often works with the parent to identify 
and obtain temporary custody with relatives or others. Attorneys also 
advocate around services for parents with substance use disorders, 
including for programs that allow continued placement of the child with 
the parent. While this is a small and relatively new program, initial 
outcome data suggests the majority of the parents working with the 
program can avoid a dependency filing and, thus, prevent the removal of 
their children from the home (Family Justice Initiative, 2020; Wall, 
Tonya and Adam Ballout. ``Using Legal Services to Keep Children in 
Families: The F.I.R.S.T. Clinic.'' Children's Rights Litigation, 
October 3, 2019.).
    <bullet> The Vermont Parent Representation Center provides legal 
representation in civil matters in cases where a child faces a 
significant risk of being removed from his or her home. In 78 percent 
of cases, children did not enter foster care. In cases in which 
children entered foster care, 50 percent went home to their families 
expeditiously (VPRC's Performance Measures, Vermont Parent 
Representation Center, Inc.) (Why VPRC Is Important to Vermont 
Families, Vermont Parent Representation Center, Inc.).
    <bullet> Children's Law Center of California (CLC) provides pre-
court legal advocacy to expecting and parenting youth who have a 
dependency case. Case managers and attorneys address issues such as 
drug use, child trafficking and exploitation, mental health and 
domestic violence. The project has successfully prevented filings in 
cases involving domestic violence by counseling clients and helping 
them obtain restraining orders once a referral was triggered.
    <bullet> Legal Aid Services of Oklahoma operates an early legal 
advocacy project. In cases where the state will not reunify a child in 
foster care because of domestic abuse, attorneys provide legal 
representation in divorce, guardianship and landlord tenant issues. The 
benefit of this early advocacy project is that it avoids removal of 
children.
    <bullet> In New York, the Bronx Defenders provide legal 
representation for parents in abuse and neglect cases in Bronx Family 
Court, advocates for families during the child protection investigation 
before a legal case is filed and advises pregnant women who are at risk 
of child protection involvement. Attorneys advise parents of their 
rights, accompany them to meetings and conferences with the 
Administration for Children's Services, refer them to community-based 
services, and work with parents to identify family supports.
    Under the revision proposed in this NPRM, we specify that allowable 
administrative costs of an attorney providing independent legal 
representation in other civil legal proceedings may include 
facilitating, arranging, brokering, advocating, or otherwise linking 
clients with providers and services as identified in the child's case 
plan. For example, a family may need to secure safe and stable housing 
to prevent the unnecessary removal of a child from the home, or a youth 
aging out of foster care may need access to stable housing to finalize 
a case plan in support of their permanency goal as required by, 
respectively, sections 471(a)(15) and 475(5)(H) of the Act. Allowable 
civil legal representation may include preparing for or participating 
in a legal proceeding to advocate with a housing authority to help a 
family or a youth aging out of foster care secure a housing voucher, 
appealing a denial of a housing voucher, or suing a landlord whose 
housing has unsafe conditions in order to execute the child's case 
plan.
    Additional examples of legal representation in civil legal 
proceedings that may be necessary to carry out the title IV-E foster 
care plan include:
    <bullet> An attorney providing independent legal representation to 
an eligible child/parent to prepare for and participate in a legal 
proceeding to establish paternity when it is necessary to establish 
title IV-E eligibility or meet the requirement for the agency to file 
for termination of parental rights when a child has been in foster care 
for 15 of the most recent 22 months (section 475(5)(E) of the Act).
    <bullet> An attorney providing independent legal representation to 
an eligible child/parent/relative caregiver to prepare for and 
participate in a legal proceeding to help a victim of family violence 
obtain an order of protection against the abuser to maintain or secure 
custody of their child(ren), secure stable housing, secure public 
benefits, or establish custody or guardianship, when it is necessary to 
meet the plan requirement to make reasonable efforts to prevent the 
unnecessary removal of a child from the home or to finalize a case plan 
in support of a child's permanency goal as required by section 
471(a)(15) of the Act.
    <bullet> An attorney providing independent legal representation to 
an eligible child/parent/relative caregiver to prepare for and 
participate in a legal proceeding to enroll a child in school or access 
education records when it is necessary to meet plan requirements to 
ensure the educational stability of the child while in foster care, 
taking into account the appropriateness of the current educational 
setting and the proximity to the school in which the child is enrolled 
at the time of placement in foster care; provide a copy of educational 
records to a child at no cost at the time the child leaves foster care; 
and ensure a child is enrolled in school per sections 471(a)(30) and 
475(1)(G) and (5)(D) of the Act.
    <bullet> An attorney providing independent legal representation to 
an eligible child to prepare for and participate in a proceeding to 
establish a health care power of attorney, health care proxy, or other 
similar document recognized under State law when it is necessary to 
meet the requirement to develop a transition plan in the 90-day period

[[Page 66773]]

immediately prior to the date on which the child will age out of foster 
care, per section 475(5)(H) of the Act.
    <bullet> An attorney providing independent legal representation to 
an eligible child/parent/relative caregiver to prepare for and 
participate in a proceeding to resolve inaccuracies in a youth's credit 
report when it is necessary to meet the plan requirement to provide a 
youth a copy of any consumer report each year until the child is 
discharged from care, and provide assistance (including, when feasible, 
from any court-appointed advocate for the child) in interpreting and 
resolving any inaccuracies in the report, per section 475(5)(I) of the 
Act.
    <bullet> An attorney providing independent legal representation to 
an eligible child/parent/relative caregiver to prepare for and 
participate in a proceeding to help a child obtain, change, or correct 
official documentation when it is necessary to meet the plan 
requirements to provide youth discharged from foster care an official 
or certified copy of the United States birth certificate of the child, 
a social security card issued by the Commissioner of Social Security, 
health insurance information, a copy of the child's medical records, 
and a driver's license or identification card issued by a State in 
accordance with the requirements of section 202 of the REAL ID Act of 
2005, and any official documentation necessary to prove that the child 
was previously in foster care per sections 475(5)(I) and 471(a)(27) of 
the Act.
    <bullet> An attorney providing independent legal representation to 
an eligible child/parent/relative caregiver to prepare for and 
participate in a proceeding to help a youth aging out of foster care 
access public benefits, housing, health insurance, and education when 
it is necessary to meet the plan requirement to develop a transition 
plan 90-days immediately prior to the date on which the child will age 
out of foster care, per section 475(5)(H) of the Act.
    In a new paragraph (4)(iii), ACF proposes that a title IV-E agency 
with placement and care responsibility for an Indian child may claim 
FFP for administrative costs of legal representation provided by an 
attorney representing an Indian child's tribe (as defined by 25 U.S.C. 
1903(5)), when the child's tribe intervenes in any state court 
proceeding for the foster care placement or termination of parental 
rights of an Indian child who is in title IV-E foster care or an Indian 
child who is a candidate for title IV-E foster care when such legal 
representation is found necessary by the Secretary to carry out the 
requirements in the title IV-E agency's title IV-E state plan. The ICWA 
was passed by Congress in 1978 to address the long history of failing 
``to recognize the essential tribal relations of Indian people and the 
cultural and social standards prevailing in Indian communities and 
families.'' (25 U.S.C. 1901(5)). ICWA protects the ``best interests of 
Indian children and promotes the stability and security of Indian 
tribes and families by the establishment of minimum Federal standards 
for the removal of Indian children from their families and the 
placement of such children in foster or adoptive homes which will 
reflect the unique values of Indian culture, and by providing for 
assistance to Indian tribes in the operation of child and family 
service programs.'' (25 U.S.C. 1902).
    As one tribal leader told Congress, tribes cannot long survive as 
``self-governing'' communities if they cannot pass their ``heritage'' 
on to the next generation. Holyfield at 34 (citation omitted). Congress 
thus recognized that, by severing that connection to future 
generations, the breakup of Indian families threatens ``the continued 
existence and integrity of Indian tribes.'' 25 U.S.C. 1901(3). The 
Federal Government has an interest in ensuring that Indian tribes, 
vested with a statutory right to intervene in state foster care 
placement proceedings in accordance with 25 U.S.C. 1911(c), have legal 
representation to preserve and protect the continued existence and 
integrity of Indian tribes. As the Supreme Court noted in a case 
interpreting ICWA, ``Congress [ ] found that the breakup of Indian 
families harmed not only Indian children and their parents, but also 
their tribes.'' Mississippi Band of Choctaw Indians v. Holyfield, 490 
U.S. 30 at 33-34 (1989).
    This proposal supports the goal of tribal self-governance by 
supporting Indian families, both by minimizing unnecessary separations 
of Indian children from their parents and by maximizing their placement 
with extended family, other tribal members, or other tribal families 
when they cannot remain with their parents. It is well documented that 
for Indian children who have been placed in foster care, and their 
families, early representation of an Indian child's tribe in foster 
care placement proceedings promotes stability for the child by 
minimizing unnecessary separation of children and their parents, and by 
maximizing placements of the child with extended family and other 
preferred placements (Frequently Asked Questions Bureau of Indian 
Affairs Final Rule: Indian Child Welfare Act (ICWA) Proceedings, June 
17, 2016).
    The information provided by the tribe's attorney provides the 
cultural and social standards of the child's tribe that are necessary 
for the court to make essential determinations that reasonable efforts 
were made as required under the title IV-E plan. For example, the Act 
requires the court to determine whether the agency made reasonable 
efforts to finalize a permanency plan. The tribal attorney's 
representation of the cultural and social standards for family 
connection, reunification and what permanency looks like in the child's 
tribe, may be necessary to finalize the permanency plan for an Indian 
child. For example, if adoption is the permanency plan for an Indian 
child, the tribal attorney can provide information on customary 
adoption, which ensures ``the same stability and permanence of 
traditional adoption without terminating parental rights.'' As with all 
allowable administrative costs, it is the option of the title IV-E 
agency with placement and care responsibility of the child whether or 
not to implement this option to claim FFP for this purpose.
    ACF is making this proposal because legal representation provided 
by an attorney to an Indian child's tribe intervening in state court 
proceedings as described above, would be an allowable administrative 
cost necessary for the proper and efficient administration of the title 
IV-E plan when it fulfills a specific title IV-E plan requirement. Such 
representation also avoids unintended consequences adverse to a child's 
interests, such as loss of tribal membership and benefits (ICWA 
Compliance Task Force Report to the California Attorney General's 
Bureau of Children's Justice. 2017).

Equity Impact

    This NPRM is consistent with the administration's priority of 
advancing equity for those historically underserved and adversely 
affected by persistent poverty and inequality (Executive Order 13985, 
Advancing Racial Equity and Support for Underserved Communities Through 
the Federal Government [Jan. 20, 2021]). Research well-documents the 
overrepresentation of certain racial and ethnic groups in foster care 
relative to their representation in the general population. African 
American and American Indian or Alaska Native children are at greater 
risk than other children of being confirmed for maltreatment and placed 
in out-of-home care. They stay in foster care longer and have disparate 
outcomes. For example, they are less likely to reunify with their 
families (Child Welfare Information Gateway. (2021). Child welfare 
practice

[[Page 66774]]

to address racial disproportionality and disparity. U.S. Department of 
Health and Human Services, Administration for Children and Families, 
Children's Bureau. https://www.childwelfare.gov/pubs/issue-briefs/racialdisproportionality/). Access to legal representation for an 
Indian child's tribe promotes equity for those historically and 
adversely affected by inequality by minimizing unnecessary separation 
of children and their parents, and by maximizing placements of the 
child with extended family, within the tribal community, and other 
preferred placements. Research also documents the overrepresentation of 
children and parents with disabilities in foster care relative to their 
representation in the general population. As many as 60 percent of 
children in foster care have disabilities. Parents with disabilities 
are more likely than nondisabled parents to have child welfare system 
involvement. Children with disabilities are institutionalized at higher 
rates and for longer periods of time. Children of parents with 
disabilities have higher out-of-home placement than other children. 
Studies have also found disabled parents have high rates of termination 
of parental rights (Albert SM, Powell RM. Supporting disabled parents 
and their families: perspectives and recommendations from parents, 
attorneys, and child welfare professionals. J Public Child Welf. 
2020;15(5):529. doi: 10.1080/15548732.2020.1751771. PMID: 37220548; 
PMCID: PMC10202498.).
    Access to independent legal representation early in foster care and 
other civil legal proceedings necessary to carry out the requirements 
in the agency's title IV-E foster care plan may prevent children of 
color from entering foster care. For children in foster care, it may 
increase the rate of reunification and provide a quicker timeframe for 
achieving permanency. For young adults aging out of foster care, such 
legal representation may provide access to services and supports needed 
to achieve permanency and long-term stability.
    This proposed change can also help low-income families adversely 
affected by persistent poverty who are struggling with unemployment, 
inadequate income, unstable housing, evictions or homelessness, and 
food insecurity when confronted with potential removal of a child from 
the home, or when a relative is caring for a child in their home. 
According to a 2017 study, 71 percent of low-income households 
experienced at least one civil legal problem in the previous year, 
including problems with health care, housing conditions, disability 
access, veterans' benefits, and domestic violence. Of the low-income 
households reporting civil legal problems, 86 percent received 
inadequate or no legal help; (Washington, D.C.: The University of 
Chicago for Legal Services Corporation, 2017). As previously explained, 
studies also show that when a child is removed from the home, having 
access to legal representation not only for child welfare proceedings 
but also for other civil legal issues earlier in a case can improve the 
rate of reunification, halve the amount of time needed to secure legal 
guardianship or adoption, and result in more permanent outcomes for the 
child and the family (Thornton, Elizabeth, & Gwin, Betsy. High-Quality 
Legal Representation for Parents in Child Welfare Cases Results in 
Improved Outcomes for Families and Potential Cost Savings. 46 Fam. L.Q. 
139 (2012)). That means that parents without independent legal 
representation in child welfare proceedings and in other civil legal 
proceedings are at a disadvantage in having their children returned to 
them. Therefore, providing families adversely affected by poverty with 
independent legal representation in foster care and other civil legal 
proceedings necessary to carry out the requirements in the agency's 
title IV-E foster care plan may improve outcomes related to 
reunification and permanency.
    In addition, access to legal representation for an Indian child's 
tribe promotes equity for those historically and adversely affected by 
inequality by minimizing unnecessary separation of children and their 
parents, and by maximizing placements of the child with extended 
family, within the tribal community, and other preferred placements.

IV. Regulatory Process Matters

Regulatory Planning and Review Executive Order 12866 and Executive 
Order 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 is supplemental to, and reaffirms the principles, structures, and 
definitions governing regulatory review as established in E.O. 12866, 
as amended by Executive Order 14094, emphasizing the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. Section 3(f) of E.O. 12866, as 
modified by 14094, defines ``a significant regulatory action'' as an 
action that is likely to result in a rule (1) having an annual effect 
on the economy of $200 million or more in any 1 year, or adversely and 
materially affecting a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, and tribal governments or communities; (2) creating serious 
inconsistency or otherwise interfering with an action taken or planned 
by another agency; (3) materially altering the budgetary impacts of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raising legal or policy 
issues for which centralized review would meaningfully further the 
President's priorities, or the principles set forth in the Executive 
order. This proposed rule is a significant rule and the Regulatory 
Impact Analysis for this proposed rule identifies economic impacts that 
exceed the threshold for significance under section 3(f)(1) of 
Executive Order 12866. The estimated cost and transfer impacts of this 
regulatory proposal are provided below. As described in the Section-by-
Section discussion above, providing legal representation in foster care 
proceedings and other civil legal proceedings minimize barriers that 
contribute to bringing families with children at risk of entering 
foster care in contact with the child welfare system and may help 
prevent children from entering foster care. For youth already in foster 
care, such legal representation can improve the rate of reunification 
resulting in more permanent outcomes for the child and the family. For 
young adults transitioning out of foster care, such legal 
representation may provide access to services and supports needed to 
achieve permanency and for long-term stability.
    Alternatives Considered: In 2019, ACF revised the Child Welfare 
Policy Manual to allow title IV-E agencies to claim FFP for the 
administrative costs of independent legal representation provided by 
attorneys representing children who are candidates for title IV-E 
foster care, children who are in title IV-E foster care, and the 
children's parent(s) in all stages of foster care legal proceedings. As 
an alternative to this NPRM, we considered only codifying this policy 
(see CWPM 8.1B #30, 31, and 32). However, this alternative would not 
meet our goals for two reasons. First, the alternative would not allow 
an agency to claim such costs in non-foster care civil legal 
proceedings, meaning that an

[[Page 66775]]

agency could only continue using state/tribal or local funds for legal 
representation in civil legal proceedings. As described in the Section-
by-Section, allowing administrative costs for legal representation in 
civil legal proceedings can help prevent children from entering foster 
care, and for youth already in foster care, can improve the rate of 
reunification and result in more permanent outcomes for the child and 
the family. Second, the alternative would only allow independent legal 
representation for the child's parent(s) and not the child's relative 
caregiver(s) as proposed. However, such legal representation for the 
growing number of relative caregivers, who often lack advance 
preparation and struggle with similar legal barriers as a parent(s), 
will reduce the need for more formal child welfare system involvement. 
For children in foster care, providing legal representation to relative 
caregivers would minimize some of the barriers that prevent a child 
from being placed with a relative caregiver, enable more children to 
maintain family connections, stabilize placements and result in more 
permanent outcomes for the child and the family.
    We also considered narrowly defining the activities an attorney may 
perform to prepare for and participate in civil legal proceedings for 
which a title IV-E agency may claim FFP. However, as described in the 
Section-by-Section, legal service programs and pilot projects that 
provided legal representation in a wide range of civil legal issues 
demonstrated a high success rate for preventing children from entering 
foster care and for children who are in foster care, expediting 
permanency. Therefore, the proposal broadens ``preparation for and 
participation in civil legal proceedings'' to include facilitating, 
arranging, brokering, advocating, or otherwise linking clients with 
providers and services as identified in the child's case plan.
    We further considered whether the statute would permit the proposal 
to be mandatory for title IV-E agencies. However, title IV-E does not 
provide authority to require agencies to provide such representation or 
to claim FFP for administrative costs. This is because title IV-E 
agencies determine the costs necessary to administer the title IV-E 
Foster Care Program, and in turn, Federal reimbursement for allowable 
costs is permitted at 50 percent FFP.
    Without this proposal codified, title IV-E agencies may continue to 
claim FFP for the administrative costs of independent legal 
representation provided by attorneys, representing children who are 
eligible for title IV-E foster care, and the children's parent(s) only 
in foster care legal proceedings.
    Finally, as an alternative to this NPRM, we considered continuing 
to not allow title IV-E agencies to claim FFP for the administrative 
cost of independent legal representation provide by an Indian child's 
tribe when the tribe intervenes in state court child welfare 
proceedings. However, such legal representation promotes stability for 
the child by minimizing unnecessary separation of children and their 
parents, and by maximizing placements of the child with extended 
family, tribal community, and other preferred placements.

Regulatory Flexibility Analysis

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

Unfunded Mandates Reform Act

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

Congressional Review

    The Congressional Review Act (CRA) allows Congress to review major 
rules issued by Federal agencies before the rules take effect (see 5 
U.S.C. 801(a)(1)(A)). The CRA defines a ``major rule'' as one that has 
resulted, or is likely to result, in (1) an annual effect on the 
economy of $100 million or more; (2) a major increase in costs or 
prices for consumers; individual industries; Federal, State, or local 
government agencies; or geographic regions; or (3) significant adverse 
effects on competition, employment, investment, productivity, or 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets 
(see 5 U.S.C. chapter 8). Based on our estimates of the impact of this 
rulemaking, the Office of Information and Regulatory Affairs (OIRA) in 
OMB anticipates that a final rule would be `major' under the CRA.

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal agencies to determine whether a policy or 
regulation may negatively affect family well-being. If the agency 
determines a policy or regulation negatively affects family well-being, 
then the agency must prepare an impact assessment addressing seven 
criteria specified in the law. ACF believes it is not necessary to 
prepare a family policymaking assessment, see Public Law 105-277, 
because the action it takes in this NPRM will not have any impact on 
the autonomy or integrity of the family as an institution.

Executive Order 13132

    Executive Order 13132 requires Federal agencies to consult with 
state and local government officials if they develop regulatory 
policies with federalism implications. Federalism is rooted in the 
belief that issues that are not national in scope or significance are 
most appropriately addressed by the level of government close to the 
people. This rulemaking will not have substantial direct impact on the 
states, on the relationship between the Federal Government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this

[[Page 66776]]

action does not have sufficient federalism implications to warrant the 
preparation of a federalism summary impact statement.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (Pub. L. 104-13) seeks to 
minimize government-imposed burden from information collections on the 
public. In keeping with the notion that government information is a 
valuable asset, it also is intended to improve the practical utility, 
quality, and clarity of information collected, maintained, and 
disclosed.
    The Paperwork Reduction Act defines ``information'' as any 
statement or estimate of fact or opinion, regardless of form or format, 
whether numerical, graphic, or narrative form, and whether oral or 
maintained on paper, electronic, or other media (5 CFR 1320.3(h)). This 
includes requests for information to be sent to the government, such as 
forms, written reports and surveys, recordkeeping requirements, and 
third-party or public disclosures (5 CFR 1320.3(c)). Collection 
requirements for title IV-E foster care administrative costs are 
currently authorized under OMB number 0970-0510 and include 
administrative costs for independent legal representation. This action 
does not include any new information collection requirements or changes 
to existing information collection requirements.

Annualized Cost to the Federal Government

    The Federal cost of the NPRM over ten fiscal years (2023-2032) is 
estimated to be $2,936,285,160 ($2,099,154,001 (foster care legal 
proceedings (FC)) + $631,567,527 (civil legal proceedings) + 
$205,563,632 (FC proceedings in which an Indian child's tribe has 
intervened). The combined total for Federal and agency costs over ten 
fiscal years is estimated to be $5,872,570,319 ($4,198,308,001 for FC 
legal proceedings + $1,263,135,054 for civil legal proceedings + 
$411,127,264 for FC proceedings in which an Indian child's tribe has 
intervened). It is optional for a title IV-E agency to claim the 
administrative cost of providing independent legal representation in 
foster care and civil legal proceedings to eligible children, their 
parents, and their relative caregivers, and for legal representation to 
an Indian child's tribe that intervenes in state court proceedings for 
the foster care placement and termination of parental rights of an 
eligible child.
    Assumptions: ACF made several assumptions when calculating title 
IV-E administrative costs:
    <bullet> FY 2021 title IV-E foster care administrative cost claims 
are used as the base year amounts for projection purposes in this NPRM 
and were sourced from Form CB-496 FC part 1. These are actual claims, 
and not estimates. For the purposes of these burden estimates, we will 
use the phrase ``candidates'' to refer to the number of children 
claimed as title IV-E candidates and ``IV-E FC'' for children who are 
in title IV-E foster care, the two populations of children (and their 
parents and relative caregivers) to which the costs of this NPRM apply.
    <bullet> AFCARS data provides the number of title IV-E eligible 
children who identified as ``American Indian\AK Native Alone Or In 
Combination.'' We assume that this population of children is 
potentially subject to ICWA requirements in state court foster care 
placement proceedings. We further assume that each such Indian child's 
tribe will intervene in state court foster care placement proceedings.
    <bullet> Title IV-E agencies may claim reimbursement for 50 percent 
of the administrative costs to provide legal representation in foster 
care proceedings, including those in which an Indian child's tribe has 
intervened in state court foster care placement proceedings, and civil 
proceedings, and the title IV-E agency must pay its share with state or 
tribal funds. This non-Federal share will be an equal percentage of 50 
percent because a title IV-E agency must match the same amount of funds 
for which it seeks Federal reimbursement.
    <bullet> We assume an overall annual 1 percent caseload growth rate 
in the population of candidates for title IV-E foster care and IV-E FC 
for whom title IV-E administrative costs will be claimed in civil legal 
proceedings and in FC legal proceedings, including those in which an 
Indian child's tribe has intervened in state court foster care 
placement proceedings. This is based on current title IV-E budgetary 
projections.
    <bullet> We assume an annual FFP claims growth factor of 4.7 
percent for FY 2023 and 2.3 percent from FY 2024 to FY 2032 for the 
administrative costs of independent legal representation in FC and in 
other civil legal proceedings. This is based on current title IV-E 
budgetary projections of the percentage of change in title IV-E 
administrative cost claims annually. We assume the calculated FY 2021 
title IV-E foster care administration eligibility rate for children 
classified as American Indian\AK Native Alone Or In Combination will 
remain unchanged for the ten FY (FYs 2023-2032) project period.
    <bullet> An implementation level is used in the calculations for 
the chart below as an estimated projection for the growth in the number 
of children (either directly or on behalf of a parent or relative 
caregivers) receiving independent legal representation in foster care 
legal proceedings or civil legal proceedings. Similarly, an 
implementation level is used in the calculations for the chart below as 
an estimated projection for the growth in the number of children whose 
tribe is receiving legal representation in state foster care placement 
and termination of parental rights legal proceedings. The 
implementation level is different for the cost estimates for foster 
care legal proceedings and civil legal proceedings, and state court 
foster care placement legal proceedings in which an Indian child's 
tribe has intervened as explained below:
    [cir] For independent legal representation in foster care legal 
proceedings, the implementation level is measured separately for 
children who are candidates and IV-E FC. The base year (FY 2021) 
implementation levels are calculated from Form CB-496 FC part 1 which 
identifies for each title IV-E agency on a quarterly basis the average 
monthly number of children where independent legal representation for 
foster care proceedings is being provided for a candidate or IV-E FC. 
For FY 2021, the independent legal representation for foster care 
proceedings implementation level is 15.4 percent for IV-E FC and 7.9 
percent for candidates. For FYs 2023-2032, the implementation levels 
are derived from the experience observed in the reported caseload data 
between FY 2020 and FY 2021 where a 24 percent growth rate occurred for 
children in title IV-E foster care. We assume that the growth rate will 
peak in the year this NPRM is finalized and then gradually diminish as 
more title IV-E agencies take up the option to claim for these costs, 
and more children are receiving this representation.
    [cir] For legal representation by an Indian child's tribe in state 
court foster care placement proceedings a single implementation level 
is measured for children who are candidates and in IV-E FC. The base 
year (FY 2021) implementation level is set at zero percent since 
Federal funding for this service will not be available until this NPRM 
is finalized. Although there is no known data on the extent to which we 
anticipate title IV-E agencies will begin

[[Page 66777]]

providing legal representation by tribes to intervene in state court 
foster care placement proceedings, we anticipate that this 
administrative cost will be made available to 5 percent of potentially 
eligible children in FY 2023 and that most of the growth will occur in 
years 2-5 (FYs 2024-2027). In FY 2027 we anticipate 35 percent of 
potentially eligible tribes will receive legal representation. In 
subsequent FYs, the implementation rate growth will gradually diminish 
as more title IV-E agencies take up the option to claim for these 
costs, and more children on whose behalf a tribe is receiving this 
representation.
    [cir] For independent legal representation in civil legal 
proceedings, the implementation level presumes that administrative cost 
claims will be limited to those children on whose behalf independent 
legal representation in foster care legal proceedings are claimed. Not 
all children receiving legal representation in FC proceedings need 
representation related to civil matters because the reasons for child 
welfare involvement vary. Additionally, not all title IV-E agencies 
providing independent legal representation in foster care legal 
proceedings will opt to also provide such legal representation in civil 
proceedings. We have no estimate for FY 2021 costs for legal 
representation in civil legal proceedings as these will be new costs as 
a result of finalizing this NPRM. We assume that the proportion of 
children receiving legal representation for civil legal proceedings 
(for both candidates and IV-E FC) will be derived from among those 
receiving representation for foster care legal proceedings. We estimate 
that the civil legal proceedings title IV-E caseload will grow 
gradually each FY from 20 percent in FY 2023, to 45 percent in FY 2027 
and up to 56 percent in FY 2032 of the children on whose behalf 
representation is also being provided for foster care legal 
proceedings. While there is a great deal of interest in providing legal 
representation in civil legal proceedings, our projections take into 
account that, in most instances, new or revised protocols will need to 
be developed with various organizations to implement a final rule. 
There will also be a need to secure state or tribal funds for the non-
Federal share of funding, which often requires legislative approvals.
Federal Cost Estimate for Independent Legal Representation in Foster 
Care Legal Proceedings
    Here we describe the individual calculations by line that are in 
the following chart. All entries in the chart and the narrative below 
are rounded to the nearest whole number. The calculations to obtain 
these amounts, however, were performed without applying rounding to the 
involved factor(s).
    Line 1. National number of children (candidates and IV-E FC) 
receiving legal representation in foster care legal proceedings. Line 1 
of the table below provides that the actual number of children 
receiving independent legal representation in FC proceedings in FY 2021 
(baseline) was 10,477 candidates and 26,092 IV-E FC. Line 1 also 
includes estimates of the annual number of children receiving 
independent legal representation in foster care proceedings in the 
following subsequent years: FYs 2023, 2024, 2025, 2027 and in 2032, the 
estimated number of children is 29,525 candidates and 73,530 IV-E FC.
    Line 2. National average FFP claim per child (candidates and IV-E 
FC) for independent legal representation in foster care proceedings. 
Line 2 of the table below displays that in FY 2021, the actual average 
title IV-E administrative cost claim per child receiving independent 
legal representation in foster care legal proceedings was $742 for 
title IV-E candidates and $2,709 for children in title IV-E foster 
care. We also provide estimates of the average title IV-E claim per 
child in the following subsequent years: FYs 2023, 2024, 2025, 2027 and 
in 2032 the per child average claim is estimated at $3,481 (IV-E FC) 
and $954 (candidates).
    Line 3. Average FFP claims for candidates and children in title IV-
E foster care for independent legal representation in foster care legal 
proceedings. Line 3 of the table below displays that in FY 2021, the 
actual FFP for children receiving independent legal representation in 
foster care legal proceedings was $7,777,621 for candidates and 
$70,689,345 for children in IV-E FC. We also provide estimates of the 
average annual claims for these children in the following subsequent 
years: FYs 2023, 2024, 2025, 2027 and in 2032 the estimated cost is 
$28,160,009 (candidates) and $255,941,062 (IV-E FC).
    Line 4. Total Federal costs for independent legal representation in 
foster care legal proceedings (candidates and IV-E FC). Line 4 of the 
table below provides that the actual total FFP in FY 2021 was 
$78,466,966, which is the sum of the costs of independent legal 
representation in foster care legal proceedings for candidates and IV-E 
FC. We also provide estimates of the total FFP for these costs in the 
following subsequent years: FYs 2023, 2024, 2025, 2027 and in 2032 the 
estimated annual cost is $284,101,071. The estimates for these 
subsequent FYs were calculated by multiplying line 1 by line 2 for 
candidates and IV-E FC.
    Line 5. Non-Federal costs for independent legal representation in 
foster care legal proceedings. Line 5 of the table below displays the 
total FY 2021 non-Federal costs of independent legal representation in 
foster care proceedings for candidates and IV-E FC was $78,466,966. 
This number is the same as line 4 because the FFP rate used in these 
estimates is 50 percent, thus we estimate the costs for Federal and 
non-Federal to be the same. We also provide estimates of the total non-
Federal costs of independent legal representation in foster care legal 
proceedings in the following subsequent years: FYs 2023, 2024, 2025, 
2027 and in 2032 the estimated annual cost is $284,101,071.
    Line 6. Total Federal and non-Federal costs of independent legal 
representation in foster care legal proceedings. Line 6 of the table 
below is the sum of lines 4 and 5 for the total Federal and non-Federal 
costs of independent legal representation in foster care legal 
proceedings for candidates and IV-E FC. The total FY 2021 costs were 
$156,933,932. We also provide estimates of these total Federal and non-
Federal costs in the following subsequent years: FYs 2023, 2024, 2025, 
2027 and in 2032 the estimated annual cost is $568,202,142.
Federal Cost Estimate of Independent Legal Representation in Other 
Civil Legal Proceedings
    Line 7. Number of children (candidates and IV-E FC) receiving 
independent legal representation in civil legal proceedings. Line 7 of 
the table below displays the estimated number of children who will 
receive independent legal representation in civil legal proceedings 
either directly, or on behalf of a parent or relative caregiver in FY 
2023 as 10,137 children. There is no estimate for FY 2021 in the chart 
because these costs were not claimed; these will be new costs as a 
result of finalizing this NPRM. We also provide estimates for 
subsequent years: FYs 2024, 2025, 2027 and in 2032 the estimated number 
of children is 63,482. This is based on the implementation level which 
is the percentage of

[[Page 66778]]

children receiving independent legal representation in foster care 
legal proceedings who are projected to also receive independent legal 
representation in civil legal proceedings in the year.
    Line 8. National average title IV-E administrative cost claim per 
child for independent legal representation in civil legal proceedings. 
Line 8 of the table below displays that in FY 2021, we assumed the 
average FFP claim per child (candidates and IV-E FC) receiving 
independent legal representation in civil proceedings to be $1,262. We 
also provide estimates for these costs for the following subsequent 
years: FYs 2023, 2024, 2025, 2027 and in 2032, we estimate the average 
FFP claim per child to be $1,621. These cost estimates were derived 
from data provided by the ``Detroit Model'' legal services program in 
which legal representation in civil issues for child welfare clients 
was calculated as an average yearly amount of $2,524 gross ($1,262 50 
percent FFP title IV-E Federal share) per client. We used the Detroit 
model project because we do not have current title IV-E administrative 
cost claims reported on the Form CB-496 for civil proceedings that we 
can use for an estimate of the cost of providing independent legal 
representation in civil legal proceedings in this NPRM. This is the 
only program model known to us providing civil legal representation in 
pre-petition cases for which average cost data is available, thus the 
only way for us to estimate these costs (Detroit Center for Family 
Advocacy Pilot Evaluation report July 2009-June 2012; Sankaran, Vivek. 
Case Closed: Addressing Unmet Legal Needs and Stabilizing Families. 
M.L. Raimon, co-author. Center for the Study of Social Policy [2014] 
[Detroit model project]).
    Pursuant to the Uniform Administrative Requirements, Cost 
Principles, and Audit Requirements for HHS Awards, title IV-E agencies 
must, among other things, ensure costs are reasonable (45 CFR 
1335.30(i) applying 45 CFR 75.404). A cost is reasonable if, in its 
nature and amount, it does not exceed that which would be incurred by a 
prudent person under the circumstances prevailing at the time the 
decision was made to incur the cost. The title IV-E agency must 
describe how the administrative costs of allowable legal representation 
are allocated in a public assistance cost allocation plan that is 
reviewed and approved by HHS (45 CFR 1355.30(k) applying 45 CFR 
95.507). To the extent that a title IV-E agency contracts with another 
public or private agency to provide or assist in title IV-E allowable 
activities, the title IV-E agency may claim reasonable costs consistent 
with their cost allocation plan and supported by a written agreement 
that, among other things, includes the specific service(s) being 
purchased, and the basis for billing (45 CFR 95.507(b)(6)). Many title 
IV-E agencies already have contracts with attorneys providing 
independent legal representation in foster care related hearings on 
behalf of children and their parent(s) where the child is either a 
candidate for or in foster care. Such agencies have experience 
identifying reasonable rates and appropriate categories of costs for 
allowable legal representation. We encourage title IV-E agencies to 
share comments on these experiences. We also specifically request 
comments from the public on what a prudent person under the 
circumstances would reasonably pay for attorney fees in civil legal 
proceedings.
    Line 9. Federal costs of independent legal representation in civil 
legal proceedings. Line 9 of the table below provides the estimated 
Federal administrative costs at 50 percent FFP for independent legal 
representation in civil legal proceedings for candidates and IV-E FC. 
These costs were calculated by multiplying the expected average monthly 
caseload (line 7) by the expected average annual claim per child (line 
8). We provide estimated Federal costs of $13,393,972 for FY 2023 and 
in subsequent years: FYs 2024, 2025, 2027 and in 2032 the estimated 
Federal cost is $102,928,630.
    Line 10. Non-Federal costs of independent legal representation in 
civil legal proceedings. Line 10 provides the estimated non-Federal 
share of administrative costs for independent legal representation in 
civil legal proceedings for candidates and IV-E FC, which is 50 percent 
of the total on line 11. This number is the same as line 9 because the 
FFP rate used in these estimates is 50 percent, thus we estimate the 
costs for Federal and non-Fderal to be the same. We provide estimated 
non-Federal costs of $13,393,972 beginning in FY 2023 and in subsequent 
FYs: 2024, 2025, 2027 and in 2032 the estimated non-Federal cost is 
$102,928,630. There is no estimate for FY 2021 in the chart because 
these costs were not claimed; these will be new costs as a result of 
finalizing this NPRM.
    Line 11. Total Federal and non-Federal cost of independent legal 
representation in civil legal proceedings. Line 11 displays the annual 
estimated total (Federal + non-Federal) costs for independent legal 
representation for candidates and IV-E FC in civil legal proceedings. 
This is the sum of lines 9 and 10. We estimate these total costs 
beginning in FY 2023 as $26,787,943 and in subsequent FYs: 2024, 2025, 
2027 and in 2032, the estimate is $205,857,260. There is no estimate 
for FY 2021 in the chart because these costs were not claimed; these 
will be new costs as a result of finalizing this NPRM.
    Line 12. Number of Indian children on whose behalf a tribe may 
receive legal representation in foster care legal proceedings 
(candidates and IV-E FC). Line 12 of the table below provides the 
estimated number of Indian children for whom legal representation may 
be received by their tribe in FC proceedings. In FY 2021 (baseline) 
candidates and IV-E FC are not listed since this administrative cost 
was not available. We estimate that the total number, beginning in 2023 
and subsequent FYs 2024, 2025, 2027 and 2032 is 3,342 for candidates 
and 7,814 for IV-E FC.
    Line 13. National average FFP claim per child (candidates and IV-E 
FC) for tribal representation in foster care legal proceedings. Line 13 
of the table below provides the average title IV-E claim per child for 
the tribal representation in foster care proceedings. In FY 2021 
(baseline), the average title IV-E administrative cost claim per child 
receiving legal representation in foster care legal proceedings was 
$1,262 (estimated) for title IV-E candidates and $2,709 (actual) for 
children in title IV-E foster care. We estimate the total per child 
claim for subsequent FYs 2023, 2024, 2025, 2027, and 2032 is 
$1,621(candidates) and $3,481 (IV-E FC).
    Line 14. Average FFP for IV-E FC and candidate itemized for tribal 
representation in foster care legal proceedings. Line 14 of the table 
below displays estimates for the average annual claims for children 
whose tribe is receiving legal representation. In FY 2021, there was no 
actual FFP for children receiving tribal legal representation in foster 
care legal proceedings. For subsequent FYs 2023, 2024, 2025, 2027 and 
2032 the estimated cost is $5,419,446 (candidates) and $27,200,314 (IV-
E FC).
    Line 15. Total FFP for tribal representation in foster care legal 
proceedings. Line 15 of the table below provides the total FFP for 
tribal representation in foster care legal proceedings by multiplying 
line 12 for candidates by line 13 for IV-E FC. For FY 2021 (base year), 
there was no actual FFP for children receiving tribal legal 
representation in foster care legal proceedings. Estimates of the total 
annual FFP for these costs in FYs 2023,

[[Page 66779]]

2024, 2025, 2027 and 2032 is $32,619,760.
    Line 16. Total non-Federal cost for tribal representation in foster 
care legal proceedings. Line 16 provides the estimated non-Federal 
share of administrative costs for tribal legal representation in foster 
care legal proceedings for candidates and IV-E FC by multiplying line 1 
by line 2, which is 50 percent of the total on line 17. This number is 
the same as line 15 because the FFP rate used in these estimates is 50 
percent, therefore we estimate the costs for Federal and non-Federal to 
be the same. We provide estimated non-Federal costs of $2,641,921 
beginning in FY 2023 and in subsequent FYs 2024, 2025, 2027 and 2032, 
the estimated non-Federal cost is $32,619,760. There is no estimate for 
FY 2021 in the chart because these costs were not claimed; these will 
be new costs as a result of finalizing this NPRM.
    Line 17. Total cost for foster care legal proceedings. Line 17 
displays the annual estimated total Federal and non-Federal costs for 
tribal legal representation for candidates and IV-E FC in foster care 
legal proceedings. This is the sum of lines 15 and 16. We estimate 
these total costs beginning in FY 2023 as $5,283,842 and in subsequent 
FYs 2024, 2025, 2027 and 2032, the estimate is $65,239,520. There is no 
estimate for FY 2021 in the chart because these costs were not claimed; 
these will be new costs as a result of finalizing this NPRM.
    ACF understands that representation for a child's tribe in foster 
care legal proceedings in practice may not always be by an attorney. 
Some states allow non-attorneys to represent a child's tribe if they 
are a member of and authorized to represent the child's tribe. We are 
considering allowing the cost of a non-attorney to represent a child's 
tribe when it is necessary for the administration of the title IVE 
plan. We are seeking comments on this proposal and are especially 
interested in any evidence that non-attorneys would effectively provide 
the information that courts need, and any recommendations for how ACF 
would ensure that non-attorneys adequately represent the child's tribe.

--------------------------------------------------------------------------------------------------------------------------------------------------------
              Year                  2021 (Baseline)          2023                2024                2025            2027 (Year 5)      2032 (Year 10)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. National number of children    10,447              13,201              15,973              19,328              24,886              29,525
 receiving legal representation    (candidates),       (candidates),       (candidates),       (candidates),       (candidates),       (candidates),
 in foster care legal              26,092 (IV-E FC).   32,876 (IV-E FC).   39,779 (IV-E FC).   48,133 (IV-E FC).   61,976 (IV-E FC).   73,530 (IV-E FC).
 proceedings (candidates and IV-
 E FC).
2. National average FFP claim     $742 (candidates),  $777 (candidates),  $795 (candidates),  $813 (candidates),  $851 (candidates),  $954 (candidates),
 per child (candidates and IV-E    $2,709 (IV-E FC).   $2,837 (IV-E FC).   $2,902 (IV-E FC).   $2,969 (IV-E FC).   $3,107 (IV-E FC).   $3,481 (IV-E FC).
 for foster care legal
 proceedings.
3. Average FFP for IV-E FC and    $7,777,621          $10,260,393         $12,700,622         $15,721,212         $21,184,501         $28,160,009
 candidate itemized for foster     (candidates),       (candidates),       (candidates), $     (candidates),       (candidates),       (candidates),
 care legal proceedings.           $70,689,345 (IV-E   $93,254,798 (IV-E   115,433,586 (IV-E   $142,887,156 (IV-   $192,541,977 (IV-   $255,941,062 (IV-
                                   FC).                FC).                FC).                E FC).              E FC).              E FC).
4. Total FFP (line 1 x line 2     $78,466,966.......  $103,515,191......  $128,134,209......  $158,608,368......  $213,726,479......  $284,101,071.
 for combined IV-E FC child and
 candidate) for foster care
 legal proceedings.
5. Total non-Federal cost (line   $78,466,966.......  $103,515,191......  $128,134,209......  $158,608,368......  $213,726,479......  $284,101,071.
 1 x line 2 for combined IV-E FC
 and candidates) for foster care
 legal proceedings.
6. Total cost for foster care     $156,933,932......  $207,030,382......  $256,268,417......  $317,216,735......  $427,452,958......  $568,202,142.
 legal proceedings (line 4 +
 line 5).
7. Number of children receiving   N/A...............  10,137............  18,398............  25,972............  42,997............  63,482.
 legal representation in civil
 legal proceedings.
8. National average FFP claim     $1,262 (baseline).  $1,321............  $1,352a...........  $1,383............  $1,447............  $1,621.
 per child for civil legal
 proceedings.
9. Total FFP for civil legal      N/A...............  $13,393,972.......  $24,869,190.......  $35,914,468.......  $62,222,311.......  $102,928,630.
 proceedings (line 7 x line 8).
10. Total non-Federal costs for   N/A...............  $13,393,972.......  $24,869,190.......  $35,914,468.......  $62,222,311.......  $102,928,630.
 civil legal proceedings (line 7
 x line 8).
11. Total Federal + non-Federal   N/A...............  $26,787,943.......  $49,738,380.......  $71,828,936.......  $124,444,623......  $205,857,260.
 costs for civil legal
 proceedings (line 9 + line 10).
12. Number of children whose      N/A...............  332 (candidates),   1,007               1,694               2,420               3,342
 tribe may receive legal                               777 (IV-E FC).      (candidates),       (candidates),       (candidates),       (candidates),
 representation in foster care                                             2,353 (IV-E FC).    3,961 (IV-E FC).    5,657 (IV-E FC).    7,814 (IV-E FC).
 legal proceedings (candidates
 and IV-E FC).
13. National average FFP claim    N/A...............  $1,321              $1,352              $1,383              $1,447              $1,621
 per child (candidates and IV-E                        (candidates), $     (candidates), $     (candidates), $     (candidates), $     (candidates), $
 FC) for ta tribe in foster care                       2,837 (IV-E FC).    2,902 (IV-E FC).    2,969 (IV-E FC).    3,107 (IV-E FC).    3,481 (IV-E FC).
 legal proceedings.
14. Average FFP for IV-E FC and   N/A...............  $438,929            $1,360,543          $2,342,923          $3,501,709          $5,419,446
 candidate itemized for a tribe                        (candidates),       (candidates),       (candidates),       (candidates),       (candidates),
 in foster care legal                                  $2,202,993 (IV-E    $6,828,594 (IV-E    $11,759,180 (IV-E   $17,575,152 (IV-E   $27,200,314 (IV-E
 proceedings.                                          FC).                FC).                FC).                FC).                FC).
15. Total FFP (line 12 x line 13  N/A...............  $2,641,921........  $8,189,137........  $14,102,103.......  $21,076,861.......  $32,619,760.
 for combined IV-E FC child and
 candidate) for a tribe in
 foster care legal proceedings.
16. Total non-Federal cost (line  N/A...............  $2,641,921........  $8,189,137........  $14,102,103.......  $21,076,861.......  $32,619,760.
 12 x line 13 for combined IV-E
 FC and candidates) for a tribe
 in foster care legal
 proceedings.
17. Total cost for a tribe in     N/A...............  $5,283,842........  $16,378,274.......  $28,204,206.......  $42,153,722.......  $65,239,520.
 foster care legal proceedings
 (line 15 + line 16).
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 66780]]

Accounting Statement

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

----------------------------------------------------------------------------------------------------------------
                                                                                      Units
                                          Primary estimate     -------------------------------------------------
              Category                       (millions)                          Discount rate   Period covered
                                                                 Year dollars         (%)            (years)
----------------------------------------------------------------------------------------------------------------
Federal Budget Transfers                                  $119            2021               7                10
 (annualized)......................                         98            2021               3                10
----------------------------------------------------------------------------------------------------------------
From/To............................   From: Federal Government     To: children eligible for
                                                                    title IV-E foster care
----------------------------------------------------------------------------------------------------------------
Other Transfers (annualized).......                        119            2021               7                10
                                                            98            2021               3                10
----------------------------------------------------------------------------------------------------------------
From/To............................  From: Title IV-E agencies     To: children eligible for
                                                                    title IV-E foster care
----------------------------------------------------------------------------------------------------------------

V. Tribal Consultation Statement

    Executive Order 13175 Consultation and Coordination With Indian 
Tribal Governments requires agencies to consult with Indian tribes when 
regulations have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes and either impose substantial 
direct compliance costs on tribes or preempt state law. Similarly, 
ACF's Tribal Consultation Policy says that consultation is triggered 
for a new rule adoption that significantly affects tribes, meaning the 
new rule adoption has substantial direct effects on one on more Indian 
Tribes, on the amount or duration of ACF program funding, on the 
delivery of ACF programs or services to one or more Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes. This final rule does not meet either 
standard for consultation. Since it is the option of the tribal title 
IV-E agency whether or not to claim FFP for independent legal 
representation in foster care and other civil legal proceedings 
necessary to carry out the requirements in the agency's title IV-E 
foster care plan, Executive Order 13175 does not apply. However, we 
plan to conduct tribal consultation during the public comment period. 
We believe that tribes will have great interest in our proposal to 
claim FFP for the administrative costs of legal representation for an 
attorney representing an Indian child's tribe when the child's tribe 
intervenes in specified state court proceedings.
    Jeff Hild, Acting Assistant Secretary of the Administration for 
Children & Families, approved this document on June 13, 2023.

List of Subjects in 45 CFR Part 1356

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

(Catalog of Federal Domestic Assistance Program Number 93.658, 
Foster Care Maintenance; 93.659, Adoption Assistance; 93.645, Child 
Welfare Services--State Grants).

    Dated: September 21, 2023.
Xavier Becerra,
Secretary, Department of Health and Human Services.

    For the reasons set forth in the preamble, ACF proposes to amend 45 
CFR part 1356 as follows:

PART 1356--REQUIREMENTS APPLICABLE TO TITLE IV-E

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

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

0
2. Amend Sec.  1356.60 by revising paragraphs (c)(2)(viii) and (x) and 
adding paragraphs (c)(2)(xi) and (c)(4) to read as follows:


Sec.  1356.60  Fiscal requirements (title IV-E).

* * * * *
    (c) * * *
    (2) * * *
    (viii) Rate setting;
* * * * *
    (x) Costs related to data collection and reporting; and
    (xi) Costs related to legal representation described in paragraph 
(c)(4) of this section.
* * * * *
    (4) The following are allowable administrative costs of legal 
representation:
    (i) Legal representation in foster care proceedings provided by an 
attorney representing the title IV-E agency or any other public agency 
which has an agreement in effect under which the other agency has 
placement and care responsibility of a title IV-E eligible child 
pursuant to 472(a)(2)(B)(ii) of the Act;
    (ii) Independent legal representation provided by an attorney 
representing a child in title IV-E foster care, a child who is a 
candidate for title IV-E foster care, the child's parent(s), and the 
child's relative caregiver in foster care and other civil legal 
proceedings as necessary to carry out the requirements in the agency's 
title IV-E foster care plan. Independent legal representation in civil 
proceedings includes facilitating, arranging, brokering, advocating, or 
otherwise linking clients with providers and services as identified in 
the child's case plan pursuant to sections 422, 471(a)(16), and 475 of 
the Act; and
    (iii) Legal representation provided by an attorney representing an 
Indian child's tribe (as defined by 25 U.S.C.1903(5)), when the child's 
tribe intervenes in any state court proceeding for the foster care 
placement or termination of parental rights of an Indian child who is 
in title IV-E foster care or an Indian child who is a candidate for 
title IV-E foster care.
* * * * *
[FR Doc. 2023-20932 Filed 9-27-23; 8:45 am]
BILLING CODE P


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