Adoption and Foster Care Analysis and Reporting System

<RULE> DEPARTMENT OF HEALTH AND HUMAN SERVICES <SUBAGY>Administration for Children and Families</SUBAGY> <CFR>45 CFR Part 1355</CFR> <RIN>RIN 0970-AC98</RIN> <SUBJECT>Adoption and Foster Care Analysis and Reporting System</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Children's Bureau (CB), Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF), U.S. Department of Health and Human Services (HHS). <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This rule finalizes revisions to the Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations proposed on February 23, 2024. This final rule requires state title IV-E agencies to collect and report to ACF additional data related to the Indian Child Welfare Act of 1978 (ICWA) for children in the AFCARS Out-of-Home Care Reporting Population. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective on February 3, 2025 except for the amendments to § 1355.44 (amendatory instruction 3), which are effective as of October 1, 2028. </EFFDATE> <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 To Issue Final Rule</FP> <FP SOURCE="FP-2">II. Overview of 2024 Notice of Proposed Rulemaking Comments and Background on the Final Rule</FP> <FP SOURCE="FP-2">III. Implementation Timeframe</FP> <FP SOURCE="FP-2">IV. Section-by-Section Discussion of Regulatory Provisions and Responses to Comments</FP> <FP SOURCE="FP-2">V. Regulatory Impact Analysis</FP> <FP SOURCE="FP-2">VI. Tribal Consultation Statement</FP> </EXTRACT> <HD SOURCE="HD1">I. Statutory Authority To Issue Final Rule</HD> This final rule is published under the authority granted to the Secretary of Health and Human Services (HHS) by Section 1102 of the Social Security Act (the Act) (42 U.S.C. 1302), which authorizes HHS to publish regulations, not inconsistent with the Act, as may be necessary for the efficient administration of the functions for which HHS is responsible under the Act and Section 479 of the Act (42 U.S.C. 679), which mandates that HHS regulate a data collection system for national adoption and foster care data. Section 474(f) of the Act (42 U.S.C. 674(f)) requires HHS to impose penalties for non-compliant adoption and foster care data. <HD SOURCE="HD1">II. Overview of 2024 Notice of Proposed Rulemaking Comments and Background on the Final Rule</HD> AFCARS is authorized by section 479 of the Act (42 U.S.C. 679), which mandates that HHS regulate a data collection system for national adoption and foster care data. The regulation at 45 CFR 1356.60(d) and the statute at 42 U.S.C. 674(a)(3) detail cost-sharing requirements for the Federal and non-Federal share of data collection system initiation, implementation, and operation. A title IV-E agency may claim Federal Financial Participation (FFP) at the rate of 50 percent for costs of a data collection system specified by section 479 of the Act (42 U.S.C. 679). AFCARS data is used for a variety of requirements, including but not limited to, providing national statistics on the child welfare population, budgeting, providing reports to Congress, and monitoring compliance with the title IV-B and IV-E requirements. Title IV-E agencies must submit data files on a semi-annual basis to ACF. AFCARS regulations were first published in 1993 and states began submitting data in fiscal year (FY) 1995. The regulations governing operation of AFCARS are codified at 45 CFR 1355.41 through 1355.47. <HD SOURCE="HD2">Recent Regulatory History</HD> ACF published a final rule revising the AFCARS regulations on December 14, 2016 (81 FR 90524, hereafter referred to as the “2016 final rule”). The rule reflected child welfare legislative changes that occurred since 1993 and included many new data elements, including information related to ICWA, and implemented statutory fiscal penalties for non-compliant AFCARS data. This rule was never implemented. Before the 2016 final rule became effective, ACF published a new rule delaying its implementation timeframe (83 FR 42225, August 21, 2018). On May 12, 2020, ACF published a final rule to again amend the AFCARS regulations (85 FR 28410, hereafter referred to as the “2020 final rule”). The 2020 final rule eliminated some of the data elements that were promulgated in the 2016 final rule and reduced the level of detail in others. The Executive Orders and actions leading to the 2020 final rule are explained in detail in the preambles to the following issuances: Advance Notice of Proposed Rulemaking (ANPRM) issued March 15, 2018 (83 FR 11449); NPRM issued April 19, 2019 (84 FR 16572); and the 2020 final rule, issued May 12, 2020 (85 FR 28410). Some of the data elements that were eliminated or altered in the 2020 final rule related to reporting on the details of ICWA's procedural protections (see also discussion at 84 FR 16573, 16575, 16577, and 85 FR 28411, and 28412). The 2020 final rule was implemented on October 1, 2022, and title IV-E agencies are now required to report AFCARS data as codified in the regulation at 45 CFR 1355.41-.47. Title IV-E agencies were required to submit the first data files with this information to ACF in May 2023. More information is available on the CB website at: <E T="03">https://www.acf.hhs.gov/cb/data-research/afcars-technical-assistance</E> . <HD SOURCE="HD2">2024 NPRM Comment Summary and Analysis</HD> The AFCARS NPRM was published on February 23, 2024 (89 FR 13652, hereafter referred to as the “2024 NPRM”) and it proposed to add or revise approximately 45 data elements related to the procedural protections of ICWA. These data elements are located in the Out-of-Home Care Data File, 45 CFR 1355.44. The NPRM proposed to revise and expand the current ICWA-related data elements in § 1355.44(b) <E T="03">Child Information</E> and add a new paragraph § 1355.44(i) <E T="03">Data Elements Related to ICWA,</E> for information to be reported on children to whom ICWA applies. As explained in the NPRM (89 FR 13653), ACF is now adding data elements and revising some of the current data elements to require reporting of more detailed information related to ICWA's procedural protections via AFCARS, in order to fulfill the AFCARS statutory mandate to provide comprehensive national information on the demographics of “adoptive and foster children and their biological and adoptive foster parents,” “the status of the foster care population,” and “the extent and nature of assistance provided by Federal, state, and local adoption and foster care programs and the characteristics of the children with respect to whom such assistance is provided” (section 479(c)(3) of the Act). For AI/AN children to whom ICWA applies, it is necessary to understand the extent to which they receive ICWA's protections in order to fully understand their “status” and “characteristics,” and “the extent and nature of assistance” provided to them. ICWA data collection helps set the stage for more informed, effective, and culturally responsive care for AI/AN children. We know AI/AN children are disproportionately represented in the state child welfare system. There is evidence that AI/AN children in state foster care have experienced a separation and disconnection from their community, culture, and language, giving them a sense of identity loss. Outcomes that AI/AN children face while being in foster care without culturally appropriate services include increased risk for runaway and homelessness, suicidal ideations, and juvenile justice interventions. The NPRM comment period closed on April 23, 2024. In response, we received 81 comments from: 14 states and 1 county; 25 Tribes; 21 organizations; and 20 individuals/anonymous. Most commenters generally supported collecting ICWA-related information in AFCARS and supported the NPRM as proposed (75 total commenters supported, 3 commenters opposed, and 3 did not express either sentiment). The supportive commenters generally expressed that having data on ICWA's procedural protections “could inform real solutions to the persistent child welfare challenges American Indian/Alaskan Native (AI/AN) children face.” They also expressed that the data “will provide a full picture of the status of AI/AN children and families and the reasons behind the lagging outcomes they experience” that can lead to “improved policy development, technical assistance, training, and resource allocation” from having “regularly updated and reliable data available.” Twelve of the 14 states/county expressed support for collecting information on ICWA's protections, saying that it will inform practice. They generally expressed praise for ACF's commitment to “augmenting national understanding of the experiences” of AI/AN children in foster care and the extent to which they are receiving the procedural protections required under ICWA. One of these commenters said that “AFCARS policy limitations over the last 30 years have hindered Tribal and state efforts to address reoccurring and chronic concerns about AI/AN children's well-being” and that that has contributed to states “not having a full understanding of their progress in implementing ICWA and difficulty in developing effective and collaborative responses with Tribes.” They generally expressed that the need for ongoing, reliable, and accessible data has never been greater. Two states and one individual expressed opposition to the NPRM, saying that most of the data elements proposed in the NPRM are better suited for a case review where “individual case circumstances as well as court order language ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 161k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━