Child Welfare Provider Inclusion Act of 2021
Bill: H.R.1750 | Sponsor: Rep. Kelly, Mike (R-PA)
Policy area: Social Welfare

Summary:
Child Welfare Provider Inclusion Act of 2021
This bill generally prohibits the federal government, states, tribal nations, or localities from discriminating or taking adverse action against a child welfare provider that declines to provide services due to the provider's sincerely held religious beliefs or moral convictions. However, government entities may still take adverse action against a provider that declines to provide adoption or foster care services based on race, color, or national origin.
The Department of Health and Human Services must withhold a portion of federal funding for family services and child welfare activities from a government entity that discriminates against a child welfare provider in violation of this bill. Child welfare providers may also sue the government entity for such discrimination. A prevailing provider may recover reasonable attorney's fees and costs.
Furthermore, government entities that accept certain federal funding for family services and child welfare activities must waive sovereign immunity as a defense to lawsuits brought under this bill. (In many cases, sovereign immunity shields states, territories, tribal nations, and some localities against private suits.)

To ensure that organizations with religious or moral convictions are 
         allowed to continue to provide services for children.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Child Welfare Provider Inclusion Act 
of 2021''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds the following:
            (1) Child welfare service providers, both individuals and 
        organizations, have the inherent, fundamental, and inalienable 
        right to free exercise of religion protected by the United 
        States Constitution.
            (2) The right to free exercise of religion for child 
        welfare service providers includes the freedom to refrain from 
        conduct that conflicts with their sincerely held religious 
        beliefs.
            (3) Most States provide government-funded child welfare 
        services through various charitable, religious, and private 
        organizations.
            (4) Religious organizations, in particular, have a lengthy 
        and distinguished history of providing child welfare services 
        that predates government involvement.
            (5) Religious organizations have long been and should 
        continue contracting with and receiving grants from 
        governmental entities to provide child welfare services.
            (6) Religious organizations cannot provide certain child 
        welfare services, such as foster-care or adoption placements, 
        without receiving a government contract, grant or license.
            (7) Religious organizations display particular excellence 
        when providing child welfare services.
            (8) Children and families benefit greatly from the child 
        welfare services provided by religious organizations.
            (9) Governmental entities and officials administering 
        federally funded child welfare services in some States, 
        including Massachusetts, California, Illinois, and the District 
        of Columbia, have refused to contract with religious 
        organizations that are unable, due to sincerely held religious 
        beliefs or moral convictions, to provide a child welfare 
        service that conflicts, or under circumstances that conflict, 
        with those beliefs or convictions; and that refusal has forced 
        many religious organizations to end their long and 
        distinguished history of excellence in the provision of child 
        welfare services.
            (10) Ensuring that religious organizations can continue to 
        provide child welfare services will benefit the children and 
        families that receive those federally funded services.
            (11) States also provide government-funded child welfare 
        services through individual child welfare service providers 
        with varying religious and moral convictions.
            (12) Many individual child welfare service providers 
        maintain sincerely held religious beliefs or moral convictions 
        that relate to their work and should not be forced to choose 
        between their livelihood and adherence to those beliefs or 
        convictions.
            (13) Because governmental entities provide child welfare 
        services through many charitable, religious, and private 
        organizations, each with varying religious beliefs or moral 
        convictions, and through diverse individuals with varying 
        religious beliefs or moral convictions, the religiously 
        impelled inability of some religious organizations or 
        individuals to provide certain services will not have a 
        material effect on a person's ability to access federally 
        funded child welfare services.
            (14) The provisions of this Act are remedial measures that 
        are congruent and proportional to protecting the constitutional 
        rights of child welfare service providers guaranteed under the 
        Fourteenth Amendment to the United States Constitution.
            (15) Congress has the authority to pass this Act pursuant 
        to its spending clause power and enforcement power under 
        section 5 of the Fourteenth Amendment to the United States 
        Constitution.
    (b) Purposes.--The purposes of this Act are as follows:
            (1) To prohibit governmental entities from discriminating 
        or taking an adverse action against a child welfare service 
        provider on the basis that the provider declines to provide a 
        child welfare service that conflicts, or under circumstances 
        that conflict, with the sincerely held religious beliefs or 
        moral convictions of the provider.
            (2) To protect child welfare service providers' exercise of 
        religion and to ensure that governmental entities will not be 
        able to force those providers, either directly or indirectly, 
        to discontinue all or some of their child welfare services 
        because they decline to provide a child welfare service that 
        conflicts, or under circumstances that conflict, with their 
        sincerely held religious beliefs or moral convictions.
            (3) To provide relief to child welfare service providers 
        whose rights have been violated.

SEC. 3. DISCRIMINATION AND ADVERSE ACTIONS PROHIBITED.

    (a) In General.--The Federal Government, and any State that 
receives Federal funding for any program that provides child welfare 
services under part B or E of title IV of the Social Security Act (42 
U.S.C. 621 et seq., 671 et seq.) (and any subdivision, office or 
department of such State) shall not discriminate or take an adverse 
action against a child welfare service provider on the basis that the 
provider has declined or will decline to provide, facilitate, or refer 
for a child welfare service that conflicts with, or under circumstances 
that conflict with, the provider's sincerely held religious beliefs or 
moral convictions.
    (b) Limitation.--Subsection (a) does not apply to conduct forbidden 
by paragraph (18) of section 471(a) of such Act (42 U.S.C. 671(a)(18)).

SEC. 4. FUNDS WITHHELD FOR VIOLATION.

    The Secretary of Health and Human Services shall withhold from a 
State 15 percent of the Federal funds the State receives for a program 
that provides child welfare services under part B or E of title IV of 
the Social Security Act (42 U.S.C. 621 et seq., 671 et seq.) if the 
State violates section 3 when administering or disbursing funds under 
such program.

SEC. 5. PRIVATE RIGHT OF ACTION.

    (a) In General.--A child welfare service provider aggrieved by a 
violation of section 3 may assert that violation as a claim or defense 
in a judicial proceeding and obtain all appropriate relief, including 
declaratory relief, injunctive relief, and compensatory damages, with 
respect to that violation.
    (b) Attorneys' Fees and Costs.--A child welfare service provider 
that prevails in an action by establishing a violation of section 3 is 
entitled to recover reasonable attorneys' fees and costs.
    (c) Waiver of Sovereign Immunity.--By accepting or expending 
Federal funds in connection with a program that provides child welfare 
services under part B or E of title IV of the Social Security Act (42 
U.S.C. 621 et seq., 671 et seq.), a State waives its sovereign immunity 
for any claim or defense that is raised under this section.

SEC. 6. SEVERABILITY.

    If any provision of this Act, or any application of such provision 
to any person or circumstance, is held to be unconstitutional, the 
remainder of this Act and the application of the provision to any other 
person or circumstance shall not be affected.

SEC. 7. EFFECTIVE DATE.

    (a) In General.--Except as provided in subsection (b), the 
amendments made by this Act shall take effect on the 1st day of the 1st 
fiscal year beginning on or after the date of the enactment of this 
Act, and the withholding of funds authorized by section 4 shall apply 
to payments under parts B and E of title IV of the Social Security Act 
(42 U.S.C. 621 et seq., 671 et seq.) for calendar quarters beginning on 
or after such date.
    (b) Exception.--If legislation (other than legislation 
appropriating funds) is required for a governmental entity to bring 
itself into compliance with this Act, the governmental entity shall not 
be regarded as violating this Act before the 1st day of the 1st 
calendar quarter beginning after the 1st regular session of the 
legislative body that begins after the date of the enactment of this 
Act. For purposes of the preceding sentence, if the governmental entity 
has a 2-year legislative session, each year of the session is deemed to 
be a separate regular session.

SEC. 8. DEFINITIONS.

    In this Act:
            (1) Child welfare service provider.--The term ``child 
        welfare service provider'' includes organizations, 
        corporations, groups, entities, or individuals that provide or 
        seek to provide, or that apply for or receive a contract, 
        subcontract, grant, or subgrant for the provision of, child 
        welfare services. A provider need not be engaged exclusively in 
        child welfare services to be considered a child welfare service 
        provider for purposes of this Act.
            (2) Child welfare services.--The term ``child welfare 
        services'' means social services provided to or on behalf of 
        children, including assisting abused, neglected, or troubled 
        children, counseling children or parents, promoting foster 
        parenting, providing foster homes or temporary group shelters 
        for children, recruiting foster parents, placing children in 
        foster homes, licensing foster homes, promoting adoption, 
        recruiting adoptive parents, assisting adoptions, supporting 
        adoptive families, assisting kinship guardianships, assisting 
        kinship caregivers, providing family preservation services, 
        providing family support services, and providing time-limited 
        family reunification services.
            (3) State.--The term ``State'' means each of the 50 States, 
        the District of Columbia, any commonwealth, territory or 
        possession of the United States, and any political subdivision 
        thereof, and any Indian tribe, tribal organization, or tribal 
        consortium that has a plan approved in accordance with section 
        479B of the Social Security Act (42 U.S.C. 679c) or that has a 
        cooperative agreement or contract with one of the 50 States for 
        the administration or payment of funds under part B or E of 
        title IV of the Social Security Act.
            (4) Funding; funded; funds.--The terms ``funding'', 
        ``funded'', or ``funds'' include money paid pursuant to a 
        contract, grant, voucher, or similar means.
            (5) Adverse action.--The term ``adverse action'' includes, 
        but is not limited to, denying a child welfare service 
        provider's application for funding, refusing to renew the 
        provider's funding, canceling the provider's funding, declining 
        to enter into a contract with the provider, refusing to renew a 
        contract with the provider, canceling a contract with the 
        provider, declining to issue a license to the provider, 
        refusing to renew the provider's license, canceling the 
        provider's license, terminating the provider's employment, or 
        any other adverse action that materially alters the terms or 
        conditions of the provider's employment, funding, contract, or 
        license.
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