Foster Care Legal Representation

<RULE> DEPARTMENT OF HEALTH AND HUMAN SERVICES <SUBAGY>Administration for Children and Families</SUBAGY> <CFR>45 CFR Part 1356</CFR> <RIN>RIN 0970-AC89</RIN> <SUBJECT>Foster Care Legal Representation</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Children's Bureau (CB), Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF), Department of Health and Human Services (HHS). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This rule allows title IV-E agencies to claim Federal financial participation (FFP) for the administrative costs of: legal representation in foster care proceedings provided by an attorney representing the title IV-E agency or any other public agency (including an Indian tribe) which 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 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 (hereafter, referred to as a child “who is eligible for title IV-E foster care”), the child's parent(s), the child's relative caregiver(s), and the child's Indian custodian(s) in foster care and other civil legal proceedings as necessary to carry out the requirements in the title IV-E agency's title IV-E foster care plan; and legal representation provided by an attorney representing an Indian child's tribe, or representation of an Indian child's tribe provided by a non-attorney, when the child's tribe participates or intervenes in any state court proceeding for the foster care placement or termination of parental rights (TPR) 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. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> This rule is effective on July 9, 2024. </DATES> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Joe Bock, Children's Bureau, (202) 205-8618. Telecommunications Relay users may dial 711 first. Email inquiries to <E T="03">cbcomments@acf.hhs.gov</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Statutory Authority</FP> <FP SOURCE="FP-2">II. Background</FP> <FP SOURCE="FP-2">III. Overview of September 2023 NPRM Comments</FP> <FP SOURCE="FP-2">IV. Section-by-Section Responses to Comments</FP> <FP SOURCE="FP-2">V. Regulatory Process Matters</FP> <FP SOURCE="FP-2">VI. Tribal Consultation Statement</FP> </EXTRACT> <HD SOURCE="HD1">I. Statutory Authority</HD> Section 474(a)(3) of the Social Security Act (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 [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. This rule is published under the authority granted to the Secretary of Health and Human Services (the Secretary) by section 1102 of 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 with which the Secretary is charged under the Act. <HD SOURCE="HD1">II. Background</HD> 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. <SU>1</SU> <FTREF/> Addressing these obstacles to restore a family's stability and safety and prevent a child from being removed from their home is critical to a child's well-being. This is because removal, even for a short period of time, exposes the child to a range of trauma and stress. <SU>2</SU> <FTREF/> A child who is at risk of entering foster care has better outcomes when they remain safely at home compared to when they are placed into foster care. <SU>3</SU> <FTREF/> Access to independent legal representation can help stabilize families, improve safety, and reduce the need for more formal child welfare system involvement, including foster care. <SU>4</SU> <FTREF/> 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. <SU>5</SU> <FTREF/> <FTNT> <SU>1</SU>  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; ACYF-CB-IM-21-02, p.2; ACYF-CB-IM-21-06 p. 12. </FTNT> <FTNT> <SU>2</SU>  Sankaran, Vivek. “Using Preventive Legal Advocacy to Keep Children from Entering Foster Care.” Wm. Mitchell L. Rev. 40, (3): 1036-1047, 2014. </FTNT> <FTNT> <SU>3</SU>  Joseph J. Doyle, Jr. “Causal Effects of Foster Care: An Instrumental Variables Approach.” Children and Youth Services Review 35(7): 1143-1151, 2013. </FTNT> <FTNT> <SU>4</SU>  Sankaran, Vivek. “Using Preventive Legal Advocacy to Keep Children from Entering Foster Care.” Wm. Mitchell L. Rev. 40, (3): 1036-1047, 2014. </FTNT> <FTNT> <SU>5</SU>  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, <E T="03">https://doi.org/10.1016/j.childyouth.2019.04.022;</E> 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). </FTNT> HHS regulations at 45 CFR 1356.60(c) detail 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 a child placing agency authorized by state/tribal law to operate services to children and families, with supervision by the title IV-E agency (Child Welfare Policy Manual section (CWPM) 8.1G #1). Examples of other public agencies may be found in section G of the CWPM and could include the state/tribal juvenile justice agency, a court, or state/tribal mental health agency. The regulation at § 1356.60(c)(2) provides examples of allowable title IV-E foster care administrative expenditures that are necessary for the administration of the title IV-E agency's plan, such as preparation for and participation in judicial determinations, referral to services, development of the case plan, case reviews, and case management and supervision. ACF policy historically allowed title IV-E agencies to claim FFP for the foster care administrative costs of “preparation for and participation in judicial determinations” as described in § 1356.60(c)(2)(ii), only for the title IV-E agency's (and if applicable, the Indian 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, and the children's parent(s) in all stages of foster care legal proceedings (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. This policy change was well received and generated positive interest from title IV-E agencies and child welfare and legal partners. 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 their 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 CWPM, such as a case plan (CWPM 8.1D #2), which we further explain in section IV of this final rule. 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). ACF published the September 2023 notice of proposed rulemaking (NPRM) proposing to codify and expand the policy in CWPM 8.1B #30, 31, and 32 (88 FR 66769, Sept. 28, 2023). Recent research, as described in the September 2023 NPRM, demonstrates that providing independent legal representation early in foster care proceedings and other civil legal proc ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 98k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━