Adoption and Foster Care Analysis and Reporting System

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1355

RIN 0970-AC47

Adoption and Foster Care Analysis and Reporting System

AGENCY:

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.

SUMMARY:

The Administration for Children and Families (ACF) proposes to amend the Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations. This notice of proposed rulemaking (NPRM) builds on an earlier proposed rule, published January 11, 2008 that addressed the requirements for State title IV-E agencies to collect and report data to ACF on children who are in out-of-home care and in subsidized adoption or guardianship arrangements with the State and AFCARS penalty requirements of the Adoption Promotion Act of 2003. This NPRM proposes many of the same changes and additions as the earlier NPRM and includes several new modifications to address changes made by the Fostering Connections to Success and Increasing Adoptions Act of 2008, such as collecting and reporting data related to the title IV-E guardianship assistance program, sibling placement, the extension of title IV-E assistance to children age 18 or older, educational stability plans and transition plans for children in foster care and the inclusion of Tribal title IV-E agencies. Additionally, modifications were made to address new requirements in the Preventing Sex Trafficking and Strengthening Families Act, which was enacted on September 29, 2014 to include information on: Victims of sex trafficking, children in foster care who are pregnant or parenting, and children in non-foster family settings.

DATES:

In order to be considered, we must receive written comments on this NPRM on or before April 10, 2015.

ADDRESSES:

Interested persons are invited to submit written comments regarding this proposed rule via regular postal mail to Kathleen McHugh, Division of Policy, Children's Bureau, Administration on Children, Youth and Families, Administration for Children and Families, 1250 Maryland Avenue SW., 8th Floor, Washington, DC 20024. Please be aware that mail sent to us may take an additional 3-4 days to process due to changes in mail handling resulting from the anthrax crisis of October 2001. If you choose to use an express, overnight or other special delivery method, please ensure first that they are able to deliver to the above address. You may also transmit comments electronically via the Internet at

http://www.regulations.gov/

. We urge you 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, you should access

http://www.regulations.gov/

. Comments will be available for public inspection Monday through Friday 7:30 a.m. to 4:00 p.m. at the above address by contacting Kathleen McHugh at (202) 401-5789.

Comments that concern information collection requirements must be sent to the Office of Management and Budget (OMB) at the address listed in the Paperwork Reduction Act (PRA) section of this preamble. A copy of these comments also may be sent to the Department representative listed above.

FOR FURTHER INFORMATION CONTACT:

Kathleen McHugh, Children's Bureau, Administration on Children, Youth and Families, (202) 401-5789 or by email at

kathleen.mchugh@acf.hhs.gov

. Do not email comments on the NPRM to this address.

SUPPLEMENTARY INFORMATION:

Contents

I. Executive Summary per Executive Order 13563

II. Background on Foster Care and Adoption Data Collection

III. Consultation and Regulation Development

IV. Overview of Major Proposed Revisions to AFCARS

V. Section-by-Section Discussion of NPRM

VI. Regulatory Impact Analysis

VII. Regulatory Flexibility Analysis

VIII. Unfunded Mandates Reform Act

IX. Paperwork Reduction Act

X. Congressional Review Act

XI. Assessment of Federal Regulations on Policies and Families

XII. Executive Order 13132

XIII. Tribal Consultation Statement

I. Executive Summary per Executive Order 13563

Executive Order 13563 requires that regulations be accessible, consistent, written in plain language, and easy to understand. This means that regulatory preambles for lengthy or complex rules (both proposed and final) must include executive summaries. Below is the executive summary for this AFCARS NPRM.

(1) Purpose of the AFCARS NPRM

(a)

The need for the regulatory action and how the action will meet that need:

The AFCARS regulations need to be revised and updated to: (1) Incorporate statutory requirements since 1993; (2) implement our statutory authority to assess penalties for noncompliant data submissions; (3) enhance the type and quality of information title IV-E agencies report to ACF by modifying and expanding data elements and requiring title IV-E agencies to submit historical data; and (4) remove outdated and antiquated requirements that will allow title IV-E agencies and ACF to keep the pace with new technology. Per existing regulations, title IV-E agencies must submit data on a semi-annual basis to ACF and we propose this to remain the same. The regulations specify the reporting population, standards for compliance, and all data elements and methods for capturing and reporting AFCARS data. In large part title IV-E agencies report the child's information as of a certain date in the six-month report period rather than a detailed accounting of events that may have occurred over the six-month report period while in foster care. This NPRM allows us to gather longitudinal data and improve the data collected by including more comprehensive data on children in foster care and adding new data elements to better measure child welfare performance and outcomes of children and families.

(b)

Legal authority for the NPRM:

The existing regulations (at 45 CFR 1355.40 and the appendices to part 1355) were published in December 1993 in response to a statutory mandate for adoption and foster care data in section 479 of the Social Security Act (the Act). That mandate remains in effect. In addition, section 474(f) of the Act requires that the Secretary impose penalties for failure to submit AFCARS data under certain circumstances. Section 1102 of the Act instructs the Secretary to promulgate regulations necessary for the effective administration of the functions for which she is responsible under the Act. The Department must have, per section 479 of the Act, a data collection system which provides comprehensive national information on:

• The demographic characteristics of adopted and foster children and their parents;

• the status and characteristics of the foster care population;

• the number and characteristics of children entering and exiting foster care, children adopted and children placed in living arrangements outside of the responsible title IV-E agency;

• the extent and nature of assistance provided by government programs for foster care and adoption and the characteristics of the children that receive the assistance; and

• the number of foster children identified as sex trafficking victims before entering or while in foster care.

(2) Summary of the Major Provisions of the NPRM

(a)

Reporting Populations.

We propose two reporting populations: The out-of-home care reporting population and the adoption and guardianship assistance reporting population. We propose to define the out-of-home care reporting population to include a child of any age who is in foster care or a child who has run away or whose whereabouts are unknown at the time the title IV-E agency becomes responsible for the child. Once the child enters foster care, he or she remains in the out-of-home care reporting population until the title IV-E agency's responsibility for the child ends. This proposal is very similar to current AFCARS practice. The adoption and guardianship assistance reporting population includes any child who is in a finalized adoption under a title IV-E adoption assistance agreement and any child who is in a legal guardianship under a title IV-E guardianship assistance agreement. Agencies continue to report a child through the report period in which his or her title IV-E agreement ends.

(b)

Data Structure.

As stated above, we propose that title IV-E agencies report AFCARS information in two separate data files: an out-of-home care data file and an adoption and guardianship assistance data file.

• For the out-of-home care data file, title IV-E agencies will report a combination of point-in-time information that's not likely to change (

e.g.,

demographics) and information on the events in the child's life over time, including every time the child enters or exits foster care and every placement change. This will support longitudinal and cohort analysis of the data that will be particularly useful for the Child and Family Services Reviews (CFSRs) and ACF's other efforts to analyze performance with respect to child and family outcomes.

• For the adoption and guardianship assistance data file, title IV-E agencies will report information that describe the circumstances of the child and adoptive family or guardians at a single point-in-time in the report period. This information is not likely to change over time.

(c)

Data Elements.

We propose to keep and revise the vast majority of data elements currently in AFCARS and add new data elements. We modify existing out-of-home care data elements on the child's placements, circumstances surrounding the child at removal, prior adoptions, and reasons for exiting care, among others. These modifications are necessary to clarify data element descriptions and conform to the new data structure. We propose new data elements that will allow us to better understand the characteristics of children in foster care and provide better context for their outcomes. Some of these include:

• Timely plans to transition out of foster care and the frequency of caseworker visits;

• the child's educational level, educational stability and involvement with special education;

• existing and previous health, behavioral and mental health conditions, and information on the timeliness of health assessments;

• domestic and intercountry adoptions and prior adoptions and guardianships; and

• new elements to better track Tribal, State and Federal financial support of foster care, adoption and guardianships.

(d)

Compliance and Penalties.

The proposed rule will strengthen our ability to hold title IV-E agencies accountable for submitting quality data. A title IV-E agency must meet basic file standards, such as timely data file submissions and more specific data quality standards, such as 10 percent or less of a variety of errors for its out-of-home care data file. A title IV-E agency that does not meet the standards upon initial submission of the data will have six months to correct and submit its data. If a title IV-E agency does not meet the standards after corrective action, ACF will apply the penalties required in statute. Penalty amounts are one-sixth of one percent of the agency's title IV-E foster care administrative funds for initial noncompliance and one-fourth of one percent of such funds for continued noncompliance.

(3) Costs and Benefits

We have determined that the costs to title IV-E agencies as a result of this rule will not be significant. We estimate that costs will be approximately $24 million annually for AFCARS for the first five years of implementation, half of which ($12 million) we estimate will be reimbursed by the Federal government as allowable costs under title IV-E. Depending on the cost category and each agency's approved plans for title IV-E and cost allocation, they may claim allowable costs as Automated Child Welfare Information System costs at the 50 percent rate, administrative costs for the proper and efficient administration of the title IV-E plan at the 50 percent rate, or training of agency staff at the 75 percent rate. Many title IV-E agencies already collect the information proposed in this NPRM. Other existing data sets cannot yield similar information because AFCARS is the only national, comprehensive case-level data set on the incidence and experiences of children who are in foster care and/or achieve adoption or guardianship with the involvement of the State or Tribal title IV-E agency. Further, we are required by section 479 of the Act to establish and maintain such a data system, so other data sources could not meet our statutory mandate.

II. Background on Foster Care and Adoption Data Collection

In 1982, the Department of Health and Human Services (HHS), through a grant to the American Public Human Services Association (formerly the American Public Welfare Association), implemented the Voluntary Cooperative Information System (VCIS) to collect aggregate information annually about children in foster care and special needs adoptions from State child welfare agencies. While some States reported data to VCIS, by 1986, Congress and other stakeholders recognized that there were a number of weaknesses in VCIS. Namely, VCIS was criticized for intermittent reporting by the States, the use of a variety of report periods, a lack of common definitions for data elements, a lack of timeliness of the data, poor data quality and the collection of aggregate data that had limited analytic utility.

As a result of these and other concerns, the President signed the Omnibus Budget Reconciliation Act of 1986 (Pub. L. 99-509) on October 21, 1986, which in part added section 479 to title IV-E of the Act. Section 479 of the Act describes the series of steps that HHS was required to take to establish a national data collection system for foster care and adoption. We were required to develop a system that avoids unnecessary diversion of resources from agencies responsible for adoption and foster care and assures that the data collected is reliable and consistent over time and across jurisdictions through the use of uniform definitions and methodologies. Furthermore, the law

required the system to provide comprehensive national information on the demographic characteristics of adopted and foster children and their parents (biological, foster and/or adoptive parents); the status of the foster care population (including the number of children in foster care, length and type of placement, availability for adoption and goals for ending or continuing foster care); the number and characteristics of children placed in or removed from foster care; children adopted or whose adoptions have been terminated; children placed in foster care outside the State that has placement and care responsibility; and, the extent and nature of assistance provided by Federal, State and local adoption and foster care programs and the characteristics of the children to whom such assistance is provided.

On August 19, 1993, the President signed into law the Omnibus Budget Reconciliation Act of 1993 (Pub. L. 103-66). Public Law 103-66 provided State title IV-E agencies with the opportunity to obtain title IV-E funds to plan, design, develop and implement a Statewide Automated Child Welfare Information System (SACWIS). On December 22, 1993, ACF published a final rule to establish AFCARS and implement SACWIS. In the AFCARS final rule, we required State title IV-E agencies to submit certain data to us on a semi-annual basis about children in foster care and adoptions that involve the State title IV-E agency. The rule required State title IV-E agencies that chose to develop a SACWIS to ensure that their system collected the AFCARS data and reported the data to ACF. We also set forth a minimum set of data standards that each State title IV-E agency had to meet in order to be in compliance with the AFCARS requirements and not be assessed a penalty.

State title IV-E agencies were required to report the first AFCARS data to us for Federal fiscal fear (FFY) 1995. However, it was not until FFY 1998, when we implemented AFCARS financial penalties for a State title IV-E agency not submitting data or submitting data of poor quality that the data became stable enough for ACF and others to use for a wide variety of purposes.

On November 19, 1997, four years after SACWIS funding was made available, the President signed the Adoption and Safe Families Act of 1997 (Pub. L. 105-89), which required the use of AFCARS data for two specific activities the calculation of Adoption and Legal Guardianship Incentive Payments (section 473A of the Act) and the Child Welfare Outcomes Annual Report (section 479A of the Act). Since that time, data from AFCARS also has been used to provide samples for the current CFSRs and title IV-E reviews, develop outcome and performance measures for the current CFSRs and the Government Performance and Results Act (GPRA), calculate State allocations for the Chafee Foster Care Independence Program (section 477 of the Act), generate short- and long-term budget projections, conduct trend analyses for short- and long-term program planning and respond to requests for information from the Congress, other Federal agencies, States, media and the public about children in foster care and children being adopted.

While AFCARS data is used for many purposes, there are no penalties currently for non-compliant data submissions. Due to a settlement of several States' appeals of AFCARS penalties, ACF discontinued withholding Federal funds for a title IV-E agency's failure to comply with AFCARS requirements in January 2002 (see ACYF-CB-IM-02-03). However, on December 2, 2003 the President signed the Adoption Promotion Act of 2003 (Pub. L. 108-145), which required ACF to institute specific financial penalties for a State title IV-E agency's noncompliance with AFCARS requirements. We notified State title IV-E agencies in ACYF-CB-IM-04-04, issued February 17, 2004, that we would not assess penalties until we issued revised final AFCARS regulations.

Ten months after the publication of the 2008 Notice of Proposed Rule Making (hereafter referred to as the 2008 NPRM), on October 7, 2008 (73 FR 2082), the President signed into law the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Pub. L. 110-351). Public Law 110-351 amended title IV-E of the Act to create an option for title IV-E agencies to provide kinship guardianship assistance payments, to extend eligibility for title IV-E payments up to age 21, to de-link adoption assistance from Aid to Families with Dependent Children (AFDC) eligibility through an eight-year phase-in and to provide federally-recognized Indian Tribes and Tribal organizations or consortia with the option to operate a title IV-E program directly, among many other provisions. These recent statutory changes to the title IV-E program are significant and thus contributed to our decision to issue a new NPRM rather than proceed with a final rule based on the 2008 NPRM. We conducted additional consultation through a Request for Comment published in the

Federal Register

on July 23, 2010 (75 FR 43187).

Public Law 110-351 also required HHS to issue an Interim Final Rule (IFR) implementing the inclusion of Tribal title IV-E agencies. We published the IFR on January 6, 2012 (77 FR 896), which defined “title IV-E agency” as the State or Tribal agency administering or supervising the administration of the title IV-B and title IV-E plans. The IFR also revised the regulations at 45 CFR 1355.40 and the appendices to part 1355 to apply the AFCARS requirements to all title IV-E agencies.

In September 2014, the President signed into law the Preventing Sex Trafficking and Strengthening Families Act (Pub. L. 113-183). Public Law 113-183 modified the AFCARS requirements in section 479 of the Act, the annual Child Welfare Outcomes Report in section 479A of the Act, and added several reports to Congress requiring the collection and reporting of certain information. This includes information on victims of sex trafficking, children in foster care who are pregnant or parenting, and children in foster care in non-foster family settings and the services they receive.

III. Consultation and Regulation Development

In the preamble to the AFCARS final regulation issued December 22, 1993, we indicated that we would revisit the regulations to assess how we may improve AFCARS (58 FR 67917). Prior to the publication of the 2008 NPRM, we analyzed the types of technical assistance requested by and provided to title IV-E agencies, our findings from AFCARS Assessment Reviews and reports from the past several years issued by the Government Accountability Office (GAO) and the Department's Office of the Inspector General (OIG) on AFCARS-related issues. We included in the 2008 NPRM an extensive discussion of the consultation process we conducted through a variety of focus groups and a

Federal Register

notice published on April 28, 2003 (68 FR 22386).

In the 2008 NPRM, we focused improvements on five general areas by restructuring the data to capture more information over time, expanding and clarifying the reporting populations, capturing greater detail on children in out-of-home care, improving the quality of data and eliminating unnecessary data and inefficiencies in the data submission process. Specifically, we proposed that AFCARS data support longitudinal data analysis by capturing comprehensive information on the child's experience in the title IV-E

agency's foster care system. We also proposed to expand the out-of-home care reporting population to include all children placed away from their parents or legal guardians for whom the title IV-E agency has placement and care responsibility. This proposal included children who were placed in juvenile justice facilities under the title IV-E agency's placement and care responsibility, but who never entered foster care. We also added and clarified a number of data elements so that title IV-E agencies could provide us with greater detail on the demographics and circumstances of children in out-of-home care. The proposed changes to the out-of-home care reporting population were designed to permit an enhanced analysis of the factors that may affect a child's permanency and well-being.

We also proposed in the 2008 NPRM to improve AFCARS data quality in several ways by clarifying existing data element descriptions, strengthening the assessment and identification of errors within a title IV-E agency's data file, and developing cross-file checks to identify defaults and other faulty programming that resulted in skewed data across the title IV-E agency's entire data file. We proposed to implement penalties for title IV-E agencies that do not meet our data file and data quality standards for AFCARS consistent with section 474(f) of the Act. In addition, we proposed to eliminate features that are no longer useful such as removing the requirement that the title IV-E agency report summary adoption and foster care data files, merging most of the currently reported adoption information into the out-of-home care data file and removing outdated technical submission requirements from the regulation.

In response to the 2008 NPRM, we received comments from 77 State and local child welfare administrators, advocates, educators, researchers and members of the public. While many commenters supported the overall direction of the NPRM, they also had many specific areas of concern, which are detailed in the next section and throughout the NPRM. Most commenters expressed overwhelming support for the shift to longitudinal reporting on children entering, currently in and exiting foster care. Commenters also generally supported the idea that longitudinal data is more valuable and beneficial than current point-in-time data reporting for evaluating child welfare outcomes. However, several commenters expressed concerns about implementing a longitudinal methodology for AFCARS data with existing data systems and resources.

In response to the 2008 NPRM commenters expressed concern with our proposed expansion of the out-of-home care reporting population to include children who were under the placement and care responsibility of the title IV-E agency but whose only living arrangement was a juvenile justice facility. Commenters questioned how the title IV-E agency would obtain detailed information for AFCARS on the children in juvenile justice facilities. However, commenters did support collecting information on children in foster care who also are involved with the juvenile justice system. Commenters also opposed our proposal to consider a placement at home as a discharge because it could artificially inflate the rate of foster care re-entry if the child re-entered foster care after the placement at home.

Commenters in response to the 2008 NPRM generally supported our proposals to collect information on the child's prior adoptions and whether the child has siblings in out-of-home care or siblings who are adopted or in a legal guardianship. Commenters also supported our proposal to expand our collection of child and family circumstances that are present at the child's removal, but commenters opposed collecting that information at any point beyond removal. Commenters also requested that the AFCARS data elements incorporate kin as an additional relationship type between the child and/or the child's family and the foster parent(s), adoptive parent(s) or legal guardian(s). The section-by-section discussion of the proposed rule that follows in the preamble addresses public comments received in response to the 2008 NPRM and how they were considered in this proposed rule.

As we synthesized and analyzed comments from the 2008 NPRM, the President signed into law Public Law 110-351. As stated above, based in part on the significant statutory changes to the title IV-E program, we decided to issue a new NPRM rather than proceed with a final rule based on the 2008 NPRM. To inform our development of this NPRM, we requested comments through a

Federal Register

notice published on July 23, 2010 (75 FR 43187) (hereto referred as the 2010 FR Notice) and conducted another round of consultation sessions with States, Indian Tribes, Tribal organizations or consortia and other interested parties in the Summer and Fall of 2010.

Our consultation from the 2010

Federal Register

(FR) Notice yielded 53 comments from the public, including State and local child welfare administrators, Indian Tribes, Tribal organizations or consortia, advocates, educators and researchers. During consultation we solicited feedback on

• Whether and how data collection and reporting requirements should change in order to provide a comprehensive national picture of children in foster care and those adopted with the involvement of the title IV-E agency;

• The circumstances under which a child should be included in the reporting population and the information the title IV-E agency should collect on children in its placement and care responsibility who are placed in settings other than foster family homes, group homes and child care institutions;

• The case level data on children in foster care, adoption and guardianship that is important to collect and report on an ongoing basis, including data that is not collected currently, that can inform and support Federal monitoring activities of the new provisions of title IV-E of the Act created by Public Law 110-351;

• The case level data on children in foster care that should be collected and reported that would provide insight into the environment and circumstances surrounding the child at removal, including why a child remains in foster care or why a child's permanency plan changes; and,

• What information should be collected about caseworker visits with a child.

Many commenters in response to the 2010 FR Notice echoed the support expressed by commenters to the 2008 NPRM to restructure AFCARS to support longitudinal data analysis in order to provide a comprehensive national picture of children who are involved with the title IV-E agency. Commenters to the 2010 FR Notice felt that it is important to include in the AFCARS out-of-home care reporting population and title IV-E guardianship and adoption assistance reporting population children age 18 or older who are involved with the title IV-E agency and to track accurately in AFCARS children who are in the placement and care responsibility of the Tribal title IV-E agency. However, commenters also expressed concern with the burden associated with reporting a longitudinal data file and additional data elements to AFCARS. Commenters to the 2010 FR Notice asked us to be clear about who would be included in each reporting population and asked that we consider aligning the AFCARS data elements with data elements from other data systems, such as the National Child Abuse and Neglect Data System

(NCANDS) and the National Youth in Transition Database (NYTD).

Some commenters to the 2010 FR Notice felt that most of the information associated with the new provisions created by Public Law 110-351 could be collected through case narratives in the child's record, rather than through AFCARS. Commenters also expressed that it would be difficult to capture comprehensive information in AFCARS on caseworker visits and the reasons why a child's permanency plan changes or, generally, why the child remains in foster care. Conversely, other commenters to the 2010 FR Notice highlighted specifically that it would be helpful to collect the same information on children who exit foster care to guardianship as children who exit foster care to adoption, whether the child has siblings in out-of-home care or siblings who have been adopted or are in a guardianship, and information relating to the educational stability of the child, such as the proximity of the child's school to the child's placement, the child's grade and the child's academic performance.

In developing this proposed rule, we considered these comments as well as comments to the 2008 NPRM. The section-by-section summary found later in this preamble provides more discussion on how specific comments factored into our proposal.

IV. Overview of Major Proposed Revisions to AFCARS

An overview of the major proposed revisions to AFCARS follows and includes many of the changes we proposed in the 2008 NPRM and other changes in response to the new statutory provisions of the Act resulting from Public Law 110-351.

References throughout this proposed rule to “child” or “children” are inclusive of all children who are served by the title IV-E program, including those age 18 or older. We are choosing to use a single reference, as opposed to using multiple references such as “youth” or “young adult,” because we believe it is less cumbersome and is easier to comprehend for the regulation.

Restructuring Data

We propose, as we did in the 2008 NPRM, to restructure the AFCARS data file in two ways, (1) to support longitudinal data analysis; and (2) to require title IV-E agencies to submit two data files an out-of-home care data file and an adoption and guardianship assistance data file.

Support Longitudinal Data Analysis

We propose that the out-of-home care data file contain longitudinal data elements that provide historical information on children who enter foster care; however, the adoption and guardianship assistance data file will not contain any longitudinal data elements. Title IV-E agencies are required to report in the existing AFCARS foster care data file some living arrangement, provider and permanency information relative to the child's most recent experiences in his or her most recent foster care episode only. We propose instead that title IV-E agencies collect and report historical information in the out-of-home care data file on (1) the date and circumstances of each of the child's removals and placements into foster care; (2) the type of environment the child was living in at the time of each of the child's removals and the title IV-E agency's authority for placement and care responsibility; (3) the date and type of each living arrangement the child experiences while in out-of-home care; (4) the demographics on each foster family home provider, if applicable; (5) information on each of the child's permanency plans and concurrent permanency plans, if applicable; (6) the date, location and purpose of each caseworker visit with the child; (7) each date that a petition to terminate parental rights (TPR) was filed and each TPR date; and (8) the date and reasons of each of the child's exits from out-of-home care.

We received many comments in response to both the 2008 NPRM and the 2010 FR Notice on our proposal to require title IV-E agencies to report recent and historical data on children who enter foster care. Commenters to both the 2008 NPRM and the 2010 FR Notice overwhelmingly expressed support for the shift to longitudinal data reporting on children entering, currently in and exiting foster care and were generally supportive of the idea that longitudinal data is more valuable and beneficial than current point-in-time data for evaluating child outcomes. However, several commenters to both the 2008 NPRM and the 2010 FR Notice expressed concerns with implementing a longitudinal methodology for AFCARS with existing data systems and resources. Specific concerns included that some title IV-E agencies' data systems do not fully support longitudinal information for children placed in non-foster care settings who are never placed in foster care, the impact of the new historical AFCARS data set on current foster care metrics (

e.g.,

placement stability, foster care episode duration and the title IV-E penetration rate) and whether and/or how adjustments will be made to account for new rules in trend analysis and a general concern for the quality of the historical data. Commenters to the 2008 NPRM also requested clarification and technical assistance on the logistics surrounding the submission of a historical data file and making the substantial system changes and adjustments that title IV-E agencies will need to make in order to comply with the revised AFCARS rules.

We recognized the concerns expressed by the commenters to both the 2008 NPRM and the 2010 FR Notice and used them to modify and clarify our proposal for longitudinal data analysis in this NPRM. We believe there is substantial support for our proposal, which also was reinforced by some commenters acknowledging that their title IV-E agencies have collected longitudinal data on children in foster care for many years and have used the longitudinal data to conduct complex analysis on their foster care populations. Since the publication of the 2008 NPRM, several State title IV-E agencies have implemented a comprehensive case management information system that supports the collection and storage of all information relevant to a child's out-of-home care experience. Additionally, enhancements in the title IV-E agency's case management system to support new data collection requirements may be eligible for SACWIS development funding. We have been and will continue to work with Tribal title IV-E agencies as they develop information systems that will be used to support their title IV-E program and to meet the data collection requirements of AFCARS. We believe the anticipated benefits of obtaining longitudinal data are vast and include the elimination of information gaps that exist in the current AFCARS data, which raise questions about the child's experiences and make the data more difficult to analyze, better information for the CFSRs or other Federal monitoring efforts and the building of our ability to conduct sophisticated analysis on a child's or groups of children's experience in foster care. Thus, based on the supportive comments to both the 2008 NPRM and the 2010 FR Notice and the anticipated benefits, we continue to propose restructuring AFCARS in order to support longitudinal data analysis by capturing more comprehensive information on the experiences of children who are placed in foster care.

AFCARS Data Files

As in the 2008 NPRM, we propose to eliminate a number of features in the AFCARS regulation that are no longer useful to us or the title IV-E agencies. We propose to dispose of the requirement for title IV-E agencies to report summary foster care and adoption data files and to merge the information on adoptions into the out-of-home care data file. Currently, title IV-E agencies must submit four data files (see appendices A and B to part 1355) a foster care data file with information on all children in foster care under the responsibility of the title IV-E agency or another public agency with an agreement with the title IV-E agency, an adoption data file with information on all children adopted during the report period in whose adoption the title IV-E agency had some involvement and two summary data files in which the title IV-E agency indicates aggregate numbers of foster care records and adoption records and the age distribution of the children in each of those records. Summary data files are no longer necessary due to advances in technology that better verify the completeness of data submissions; commenters to the 2008 NPRM were appreciative and supportive of this proposal.

Our proposal continues the 2008 NPRM proposal of including most of the information from the existing foster care and adoption data file in one data file, called the out-of-home care data file, as well as adding a new data file, called the title IV-E adoption and guardianship assistance data file, to report information on children who are in a finalized adoption or legal guardianship under a title IV-E adoption or guardianship assistance agreement and on the agreement itself. Our current proposal for the title IV-E adoption and guardianship assistance data file differs slightly from the 2008 NPRM where we proposed to collect information on the adoption assistance agreement (both title IV-E and State funded) and a guardianship subsidy (State and title IV-E funded, if the State had an approved demonstration waiver). We did not receive substantive comments in response to the 2008 NPRM on this proposal. Generally, we propose in this NPRM to collect the same information, if applicable, on adoptions and legal guardianships. The new data file structure will most likely eliminate the need to resubmit prior data files since the out-of-home care data file will now include historical information on the child's current and prior removals and out-of-home care episodes; any identified data corrections may occur either in the title IV-E agency's corrective data file (described in section 1355.45) or in the data file due at the next regular six-month report period.

We also continue our proposal to remove information on technical submission requirements from the regulation. These major changes we propose to make to AFCARS will reduce the burden associated with submitting two additional data files, will provide a logical flow of data for the child's entire out-of-home care episode in one file and will provide the title IV-E agencies and us with flexibility to keep the pace with newer technology. These changes, along with all other features of the proposed database, are detailed in the section-by-section discussion found later in this preamble.

Reporting Populations

This NPRM proposal is very similar, for the most part, to current AFCARS practice regarding reporting populations. We propose that the out-of-home care reporting population include a child of any age who is placed in foster care as defined at 45 CFR 1355.20 or a child who has run away or whose whereabouts are unknown at the time the child is placed under the placement and care responsibility of the titleIV-E agency. The out-of-home care reporting population continues to include a child who is under the placement and care responsibility of another public agency that has an agreement with the title IV-E agency pursuant to section 472(a)(2)(B) of the Act, or an Indian Tribe, Tribal organization or consortium with which the title IV-E agency has an agreement or contract and on whose behalf title IV-E foster care maintenance payments are made.

Based on the comments we received in response to the 2008 NPRM, we propose an out-of-home care reporting population that is closer to the current AFCARS foster care reporting population than to that proposed in the 2008 NPRM. In the 2008 NPRM we proposed an expanded out-of-home care reporting population that would have included every child under the State's age of majority placed away from his or her parents or legal guardians for 24 hours or more for whom the title IV-E agency has placement and care responsibility regardless of the child's living arrangement, including a child whose only placement was in a non-foster care setting such as a detention facility, hospital or jail. In the 2008 NPRM, we proposed that a child who returns home while still in the title IV-E agency's placement and care responsibility no longer be included in the AFCARS out-of-home care reporting population and the child would be reported as having exited from out-of-home care. We now propose that the child remain in the out-of-home care reporting population until the title IV-E agency no longer has placement and care responsibility;

i.e.,

a child remains in the out-of-home care reporting population through the end of the report period in which the title IV-E agency's placement and care responsibility ends.

We propose that the adoption and guardianship assistance reporting population include any child who is in a finalized adoption under a title IV-E adoption assistance agreement with the title IV-E agency pursuant to section 473(a) of the Act and any child who is in a legal guardianship under a title IV-E guardianship assistance agreement with the title IV-E agency pursuant to section 473(d) of the Act. A child remains in the title IV-E adoption and guardianship assistance reporting population through the end of the report period in which the agreement ends or is terminated.

As previously noted, we propose that the AFCARS data file no longer include an adoption data file. The existing AFCARS adoption data file not only includes information on children who were adopted from foster care, but also those who were adopted through a private agency and in whose adoption the title IV-E agency had any involvement. We proposed in the 2008 NPRM that the title IV-E agency report in the out-of-home care data file additional information on children exiting out-of-home care to a finalized adoption. We also proposed that the title IV-E agency report in the adoption and guardianship assistance file information on children who were adopted from a private agency on whose behalf the title IV-E agency is paying an adoption subsidy or providing services. Our current proposal for the adoption and guardianship assistance reporting population differs from the adoption assistance and guardianship subsidy reporting population proposed in the 2008 NPRM which would have included any child under a title IV-E or State adoption assistance agreement in effect during the report period, including children in pre-adoptive homes and any child under a subsidized guardianship agreement supported by State and/or title IV-E funds, if the State had an approved demonstration waiver.

We modified our proposal for both the out-of-home care reporting population and the adoption and guardianship

assistance reporting population due to the many comments and feedback we received in response to the 2008 NPRM proposal and 2010 FR Notice. Commenters were generally concerned that title IV-E agencies would be held accountable for the timeliness and accuracy of AFCARS information on children that had to be gathered from various sources outside of the title IV-E agency's control (

e.g.,

juvenile justice agencies). Commenters also were concerned regarding our proposal to exclude from the reporting population children placed at home, stating that excluding these children would require changes to systems related to title IV-E determinations and funding, would create disincentives to responsive child welfare practices, would erroneously inflate the actual number of foster care entries and exits of a child and would not be reflective of many States' mandates to consider such children as in foster care. In addition, ACF is required under section 479(c)(3) of the Act to capture information on adopted children, including demographics and information on the child and child's adoptive parents. While there is no statutory mandate to collect similar information on children who have achieved permanency through legal guardianship, we propose to collect the same information on these children and their legal guardian(s) because we have the same need for information on children who are supported by title IV-E funding, per section 473(d) of the Act. We believe that our current proposal for the out-of-home care reporting population and the adoption and guardianship assistance reporting population will address the issues expressed by the commenters.

Capturing Greater Detail

We propose to add and clarify the type of case-level information collected on children who enter foster care and children who are under a title IV-E adoption or guardianship assistance agreement. These changes are designed to permit enhanced analyses of the factors that may affect a child's permanency and to incorporate data elements that capture the provisions of Public Law 110-351. The changes include:

• Revised data elements designed to better capture the circumstances affecting the child and family at the time of removal;

• Revised data elements to better describe the child's environment at removal and the location and type of living arrangements in which children are placed by the title IV-E agency;

• New data elements on caseworker visits with children in foster care;

• New data elements that allow us to identify minor parents who have their children with them in foster care, sibling groups and whether or not siblings are placed together;

• Revised data elements that enhance our understanding of permanency planning for children in foster care, including new data elements that identify why a child's permanency plan changes, the child's concurrent permanency plans and the child's transition plan;

• New data elements that inform us about the child's well-being, including the child's educational level, educational stability and involvement with special education, as well as clarified data elements on the child's health, behavioral and mental health conditions;

• Revised data elements that enhance our understanding of prior adoptions and legal guardianships, as well as the child's exit to a new adoption or legal guardianship; and,

• Revised and new data elements designed to capture the number and characteristics of children who are in finalized adoptions and legal guardianships under title IV-E adoption and guardianship assistance agreements as well as information in the child's title IV-E adoption or guardianship assistance agreement, including the amount of the subsidy and nonrecurring costs.

We received many supportive comments in response to both the 2008 NPRM and 2010 FR Notice on our proposal to capture greater detail on children who enter foster care and children who are under a title IV-E adoption or guardianship assistance agreement. Some commenters in response to the 2008 NPRM requested that we clarify our proposal for a number of data elements and we have made every effort to address those requests. We explain how individual comments factored into each data element in the section-by-section discussion of the NPRM found later in this preamble.

Improving Data Quality

As in our 2008 NPRM, we propose to improve AFCARS data quality in several ways. First, we propose to clarify and modify many existing data element descriptions that stakeholders and commenters to the 2008 NPRM and 2010 FR Notice informed us were problematic. Second, we propose to strengthen our assessment and identification of errors within a title IV-E agency's data file through cross-file checks to identify defaults and other faulty programming that result in skewed data across a title IV-E agency's entire data file, increased internal consistency checks to validate the logical relationship between data elements, and modified requirements for missing data and invalid data within a data file. Finally, we propose to implement penalties consistent with section 474(f) of the Act for title IV-E agencies that do not meet our data file and data quality standards for AFCARS.

Burden

Commenters in response to the 2008 NPRM proposal and the 2010 FR Notice expressed some concern over the burden associated with reprogramming their information systems to collect and report additional data elements. Many of the commenters in response to the 2008 NPRM and 2010 FR Notice raised concerns about the ambiguity of the definitions for the data elements and the value of the additional data elements. We are cognizant of the potential burden associated with requiring title IV-E agencies to submit additional information to AFCARS, and of the requirement in section 479(c)(1) of the Act that instructs that AFCARS “avoid unnecessary diversion of resources from agencies responsible for adoption and foster care.” We recognize that regardless of the amount and type of information that will be in the final rule, the title IV-E agencies will have to write new extraction routines to report the AFCARS data. Throughout the process of drafting this proposed rule, we considered the burden of inputting the information and programming that may be associated with the addition of each new data element and we critically weighed the advantages of each data element proposed here against the potential increased burden to title IV-E agencies. We tried, as we did in the 2008 NPRM, to ask for information that caseworkers collect as part of their normal work duties and that is already collected in the majority of State title IV-E agency information systems. We recognize that Tribal title IV-E agencies have not collected this data previously but we have been providing support to Tribal title IV-E agencies as they consider developing an information system that will meet their needs. We will continue to provide intensive technical assistance to both State and Tribal title IV-E agencies once the final rule for AFCARS is published.

In response to the comments we received from both the 2008 NPRM and 2010 FR Notice, we did not include a number of data elements that we proposed in the 2008 NPRM, namely

data elements regarding family record numbers; child and family circumstances at the initial permanency plan, annually and at exit; information on the language of the child and foster parent(s); the marital status of the mother at birth and the biological parents at removal; and specific information about the people whom the child was living with at removal. Additionally, we propose to remove the requirement for title IV-E agencies to submit summary data files and combine or remove data elements that capture duplicative information.

Compliance and Penalties

We propose to define the standards and manner by which we assess and determine compliance on each data file submitted by the title IV-E agency, permit the opportunity for corrective action by the title IV-E agency and if necessary, assess a penalty for the title IV-E agency's continued noncompliance with AFCARS requirements. We propose to apply compliance standards to both the out-of-home care data file and the adoption and guardianship assistance data file, with exceptions for optional provisions of title IV-E. Specifically, we do not propose to apply the compliance standards to children in either data file who are age 18 or older and/or children in the adoption and guardianship assistance data file who are in a legal guardianship under a title IV-E guardianship assistance agreement. For the remaining children in each reporting population, we propose to assess each data file for errors such as missing, invalid or internally inconsistent data, cross-file errors and tardy transactions. The title IV-E agency must submit each data file to ACF on or before the reporting deadline, in the proper format and free of cross-file errors.

We propose to implement penalties for title IV-E agencies that do not meet our data compliance and data quality standards. We propose that the pool of funds that are subject to a penalty for noncompliance be the title IV-E agency's claims for title IV-E foster care administrative costs (including training) for the quarter in which each original data file is due (as opposed to the corrected data file), consistent with section 474(f) of the Act and the 2008 NPRM proposal.

Many commenters in response to the 2008 NPRM proposal and 2010 FR Notice requested tolerance for errors related to the collection and reporting of demographic data elements due to concerns about meeting compliance standards for these elements. Many commenters to both the 2008 NPRM and 2010 FR Notice also expressed concern with the proposed penalty structure. Some commenters requested that we provide incentives in addition to or in lieu of penalties, vary penalties by degrees of non-compliance and phase-in or delay the implementation of penalties. We believe that the compliance standards and penalty structure we are proposing will ultimately increase the quality of the data that is collected and reported by title IV-E agencies.

Implementation of changes to AFCARS described in this NPRM will be dependent on the issuance of a final rule. We expect provisions in an eventual final rule to be effective no sooner than the start of the second Federal fiscal year following the publication of the final rule. A precise effective date will be dependent on the publication date of the final rule, but this construct provides title IV-E agencies with at least one full year, and possibly longer, before we will require them to begin collecting and reporting new AFCARS data. We welcome public comments on specific provisions included in this proposed rule that may warrant a longer phase-in period and will take these comments into consideration when developing the final rule.

V. Section-by-Section Discussion of NPRM

Section 1355.40 Scope of the Adoption and Foster Care Analysis and Reporting System

In section 1355.40, we propose to revise the statement of scope for AFCARS. The proposed scope statement explains which entities must report data to ACF and what data those entities must report.

Section 1355.40(a)

In paragraph (a), we propose that all title IV-E agencies collect and report AFCARS data to ACF. This is consistent with our legislative authority in section 479 of the Act. Currently, all States, the District of Columbia and Puerto Rico operate title IV-B and IV-E programs. As a result of Public Law 110-351, Indian Tribes, Tribal organizations or consortia can now administer title IV-E programs directly and those that do so are required to collect and report AFCARS data.

Section 1355.40(b)

In paragraph (b), we propose to revise the general parameters for collecting and reporting AFCARS data. We propose that a title IV-E agency collect and submit to us information for the reporting populations proposed in new section 1355.41 and that the information must be submitted to us on a semi-annual basis in an out-of-home care data file and an adoption and guardianship assistance data file as required in proposed new section 1355.42. This information includes a child's demographics and characteristics, removal, living arrangements and experiences in out-of-home care, as well as the nature of finalized title IV-E adoptions and guardianships and information on title IV-E adoption and guardianship assistance agreements.

Current AFCARS regulations require title IV-E agencies to report data in the foster care data file on a child's demographics, most recent removal and circumstances of that removal, current placement settings, permanency goals and Federal assistance. In the current AFCARS adoption data file, we collect information on a child's demographic information, special needs status, birth and adoptive parent(s), placement information and adoption support. While we propose to continue to require reporting of some of the same data that is currently collected in the foster care and adoption data files in the out-of-home care data file, we now propose requiring a title IV-E agency to report information on legal guardianship and other topics, as detailed below.

In the 2008 NPRM we proposed to expand the scope of certain information title IV-E agencies must report in the out-of-home care data file to include a child's entire historical and current experience in out-of-home care in order to establish a more comprehensive and longitudinal database. Because comments on the 2008 NPRM and the 2010 FR Notice were generally supportive of the move to a longitudinal database and because the existing data does not meet our program needs, we again propose to expand the scope of information. As in the 2008 NPRM, we propose to collect information on education, concurrent planning and demographic information on a child's adoptive parents in the out-of-home care data file. For the first time, we propose to collect information on caseworker visits. We also propose to collect information on a child's adoption assistance agreement in the adoption and guardianship assistance data file, as in the 2008 NPRM. However, because we have the same need for information on children supported by title IV-E guardianship assistance program, we also propose to collect equivalent information on a child's title IV-E guardianship assistance agreement.

Section 1355.41 Reporting Populations

In new section 1355.41, we propose the reporting populations for the AFCARS out-of-home care and adoption and guardianship assistance data files. The definition of each reporting population describes which children the title IV-E agency is required to collect and report information on in each respective data file.

Section 1355.41(a) Out-of-Home Care Reporting Population

In paragraph (a), we explain our proposed out-of-home care reporting population. A child who enters the out-of-home care reporting population continues in the population until placement and care responsibility ends.

In paragraph (a)(1), we propose at what point a child enters the out-of-home care reporting population. We also propose that the title IV-E agency must report data as described in section 1355.43 on each child for whom the title IV-E agency has placement and care responsibility and who meets one of the conditions in paragraphs (a)(1)(i) through (a)(1)(iii) .

In paragraphs (a)(1)(i) through (a)(1)(iii), we further clarify the out-of-home care reporting population.

In paragraph (a)(1)(i), we specify that the child enters the out-of-home care reporting population if he or she is in foster care as defined in section 1355.20, which defines foster care as 24-hour substitute care for any child placed away from his or her parent(s) or guardian(s) and for whom the title IV-E agency has placement and care responsibility. This includes instances when a child has been placed in a foster care setting following placement in a non-foster care setting.

In paragraph (a)(1)(ii), we specify that the out-of-home care reporting population includes any child who is under the placement and care responsibility of another public agency that has an agreement under section 472(a)(2)(B) of the Act, or an Indian Tribe, Tribal organization or consortium that has a contract or agreement, with the title IV-E agency to pay title IV-E foster care maintenance payments on the child's behalf.

In paragraph (a)(1)(iii), we specify that a child enters the out-of-home care reporting population if he or she has run away or his or her whereabouts are unknown at the time that the title IV-E agency receives placement and care responsibility for the child.

The proposal for paragraphs (a)(1)(i) and (a)(1)(iii) differ from both current AFCARS foster care reporting population and the out-of-home care reporting population proposed in the 2008 NPRM. The foster care reporting population in existing AFCARS regulations includes all children who are in foster care for more than 24 hours under the responsibility of the State agency administering or supervising the administration of the title IV-B Child and Family Services Plan (CFSP) and the State title IV-E plan, that is, all children who are required to be provided the assurances in section 422(b)(10) of the Act. The existing AFCARS foster care reporting population includes children at the time they enter foster care as defined in 45 CFR 1355.20. In the 2008 NPRM, we proposed a new and expanded out-of-home care reporting population to include every child under the State's age of majority placed away from his or her parent(s) or legal guardian(s) for 24 hours or more for whom the State title IV-E agency had placement and care responsibility regardless of the child's living arrangement. This included a child whose only placement while under the placement and care responsibility of the title IV-E agency was in a non-foster care setting such as a detention facility, hospital or jail. Many commenters to the 2008 NPRM proposal felt the definition was too broad. States were particularly concerned about the burden of having to gather data from other State systems that serve a child in a juvenile justice, mental health or hospital setting. Commenters to the 2010 FR Notice expressed similar concerns about data collection and staff burden. We considered the comments to both the 2008 NPRM and the 2010 FR Notice and modified the out-of-home care reporting population definition in proposed section 1355.41(a)(1) to address these concerns. This proposal is similar to the foster care reporting population in the existing AFCARS in that those children whose only placement is a non-foster care setting (

e.g.,

juvenile justice, mental health or hospital facility) would not be part of the out-of-home care reporting population. Additionally, those children who are placed initially in a non-foster care setting and then enter foster care as defined in 45 CFR 1355.20 are considered to be removed as of the start date of the child's placement into foster care.

The proposal for paragraph (a)(1)(ii) is similar to the existing AFCARS regulations that define the foster care reporting population (Appendix A to part 1355, section II). All title IV-E agencies can enter into agreements/contracts with Indian Tribes, Tribal organizations or consortia and agreements with separate public agencies such as juvenile justice or mental health agencies in order to claim title IV-E on behalf of title IV-E eligible children. These other public or Tribal entities with which the title IV-E agency has an agreement do not submit information on children in the reporting population to ACF separately from the title IV-E agency. Rather, information on children under the placement and care responsibility of an agency that has an agreement with the title IV-E agency must be a part of the title IV-E agency's AFCARS data submission.

In existing AFCARS policy, the title IV-E agency is required to report on all children up to the State's age of majority and a child of any age that is eligible for and receiving a title IV-E payment. We propose to modify the AFCARS reporting population to include a child of any age for whom the title IV-E agency has placement and care responsibility when such a child has been placed in foster care in accordance with the regulatory definition of foster care in section 1355.20. We propose to include a child of any age in the out-of-home care reporting population to be consistent with the changes in Federal law per the enactment of Public Law 110-351, which amended section 475(8)(B) of the Act. Section 475(8)(B) now provides the option for title IV-E agencies to adopt a definition of “child” for the title IV-E foster care program that allows title IV-E reimbursement for an eligible child up to age 21 who meets certain education and employment conditions. We propose the out-of-home care reporting population to include a child of any age that meets the conditions in paragraphs 1355.41(a)(1)(i) through (a)(1)(iii) whether or not the child receives a payment that is federally subsidized because this will allow us to establish a more comprehensive and longitudinal national database on all children in out-of-home care.

We modified the out-of-home care reporting population from the existing AFCARS regulation by including those children for whom the title IV-E agency has placement and care responsibility but who have runaway or whose whereabouts are unknown at the time that the title IV-E agency receives placement and care responsibility for the child. We propose this modification to update the regulation to incorporate current AFCARS practice regarding a child who has runaway or whose whereabouts are unknown.

As we did in the 2008 NPRM, we want to clarify that the proposed out-of-home care reporting population does not include children who are under the

title IV-E agency's “supervision” authority, unlike the current regulation. We found the reference to “supervision” problematic because we never defined the term “supervision” further in AFCARS regulations or policy. We have received questions about whether the existing AFCARS foster care reporting population includes children in a variety of settings for whom the title IV-E agency has only a legal duty to supervise with no concurrent placement and care responsibility. To be clear, children who are receiving only services in the homes of their parent(s) or legal guardian(s) and children who may be placed away from their parent(s) or legal guardian(s) but for whom the title IV-E agency has no placement and care responsibility (

e.g.,

placed in a juvenile justice or mental health facility) are not a part of the proposed AFCARS out-of-home care reporting population.

In paragraph (a)(2), we clarify that once a child enters the out-of-home care reporting population he or she remains in the out-of-home care reporting population through the end of the report period in which the title IV-E agency's placement and care responsibility ends, regardless of any subsequent living arrangement while in out-of-home care. For example, we propose to continue including in the out-of-home care reporting population a child who moves from a placement in a foster care setting to a non-foster care setting such as a detention facility, hospital or jail. We also propose to include in the out-of-home care reporting population a child whose whereabouts are unknown or a child who runs away, a child who has returned home and is placed with his or her parent(s) or legal guardian(s) under the continued placement and care responsibility of the title IV-E agency, or, a child age 18 or older who is living independently. In these situations, the child remains under the title IV-E agency's placement and care responsibility and therefore these children must be included in the out-of-home care reporting population.

We propose to require the title IV-E agency to continue to report information on all of a child's placements once he or she enters the out-of-home care reporting population including various out-of-home care placement settings that are outside of the definition of foster care. Including a child's placement in non-foster care settings such as a detention facility, hospital or jail will permit title IV-E agencies and ACF to complete longitudinal analyses of a child's total out-of-home care experience, as advocated by States and others in the field.

In the 2008 NPRM, we proposed to discontinue reporting AFCARS data for a child who is returned home to his or her parent(s) or legal guardian(s), and considered such a child to have exited the out-of-home care reporting population even if the child remained under the placement and care responsibility of the title IV-E agency. This proposal was a reversal from current AFCARS requirements which indicate that a child placed at home with his or her parent(s) or legal guardian(s) may be included in the foster care reporting population, but would be considered discharged for AFCARS purposes automatically after six months. Some commenters to the 2008 NPRM opposed our proposal and many felt strongly that children who are placed at home under the placement and care responsibility of the title IV-E agency should remain in the out-of-home care reporting population, as they felt that considering a placement at home as a discharge would artificially inflate the rate of foster care re-entry if the child moved to a foster care setting after the placement at home. After considering these comments, we agree that we want to collect data on all children once they have entered the out-of-home care reporting population until the title IV-E agency's placement and care responsibility ends. Therefore, we propose that any child who enters the out-of-home care reporting population remain in the out-of-home care reporting population until the title IV-E agency's placement and care responsibility for the child ends.

In paragraph (a)(3), we propose that for AFCARS purposes, an out-of-home care episode is defined as the period between a child's entry into the out-of-home care reporting population and the date the title IV-E agency's placement and care responsibility ends. If the title IV-E agency returns the child home to live permanently with his or her parents or legal guardians and placement and care responsibility ends, the child exits the out-of-home care reporting population.

The existing AFCARS regulations consider a child to have exited foster care when he or she is legally discharged from the title IV-E agency's placement and care responsibility. The child exits the foster care reporting population for AFCARS purposes and completes an out-of-home care episode in these circumstances. Our current proposal differs from the existing AFCARS regulation and the 2008 NPRM proposal, which proposed that the title IV-E agency discontinue reporting a child to AFCARS if the child is placed at home with his or her parents, even if the child remains under the placement and care responsibility of the title IV-E agency. Many States over the years have highlighted the need for more definitive guidance on when the child should be considered to have exited the AFCARS foster care reporting population so we are proposing the end of the placement and care responsibility as the point at which a child exits the out-of-home care reporting population.

Section 1355.41(b) Adoption and Guardianship Assistance Reporting Population

In paragraph (b), we explain our proposed reporting population for the adoption and guardianship assistance data file.

In paragraph (b)(1) we propose that the title IV-E agency must report data as described in section 1355.44 on each child who meets one of the conditions in the paragraphs (b)(1)(i) or (b)(1)(ii).

In paragraph (b)(1)(i), we propose to require the title IV-E agency to report information required by section 1355.44 on any child for whom there is a finalized adoption under a title IV-E adoption assistance agreement (per section 473(a) of the Act) with the reporting title IV-E agency that is or was in effect at some point during the report period. The existing AFCARS regulation does not include an adoption and guardianship assistance data file. In the existing AFCARS regulation, title IV-E agencies report in the adoption file on any child adopted in the State during the report period, in whose adoption the title IV-E agency had any involvement. Our current proposal differs from the reporting population for the existing AFCARS adoption data file and the reporting population proposed in the 2008 NPRM for the adoption and guardianship subsidy data file. In the 2008 NPRM we proposed that title IV-E agencies report on any child with a title IV-E adoption assistance agreement or a State adoption assistance agreement in effect during the report period, including children in pre-adoptive homes. Unlike the 2008 NPRM, we do not propose to include a child in a pre-adoptive living arrangement in the adoption and guardianship assistance reporting population.

We received comments to the 2008 NPRM and 2010 FR Notice suggesting concern about barriers to obtaining ongoing information about a child post-adoption. States were particularly concerned about intrusiveness, inability and lack of authority to gather this data. To address some of these comments, and in an effort to eliminate duplicate information in the AFCARS files in paragraph (b)(1), we now propose to

limit the reporting population of the adoption and guardianship assistance data file to include only those children with finalized adoptions who are under title IV-E adoption assistance agreements. We propose to collect this information to supplement, rather than duplicate, data collected upon exit to adoption in proposed section 1355.43(h). Further, we only are collecting ongoing information on children under title IV-E adoption assistance agreements to remain within the scope of AFCARS described in section 1355.40. Information collected will be limited to basic demographic information on the adopted child, as well as information regarding the title IV-E adoption arrangement and assistance agreement in effect during the report period. Several State responders to the 2010 FR Notice commented that title IV-E agencies should not have to collect data on finalized adoptions. However, we cannot make this change as we are statutorily required, per section 479(c)(3) of the Act, to capture information on adopted children, including demographics and information about the child's title IV-E adoption from the assistance agreement. We anticipate that collecting this information will not increase burden significantly, as the child's demographic data and basic information related to the title IV-E agreement should not change between report periods and will not require updating by caseworkers. Similarly, information about updates to IV-E adoption and guardianship assistance payments should already be captured elsewhere in the title IV-E information system and should not require manual updates.

We are not proposing to include information on a child in a pre-adoptive placement in this data file, although he or she may have a title IV-E agreement and receive title IV-E adoption assistance before the adoption finalization. This information continues to be collected in the out-of-home care data file and the title IV-E agency must report information on the child's pre-adoptive living arrangement in proposed section 1355.43(e).

We propose to include a child in a finalized adoption under a title IV-E adoption assistance agreement in the adoption and guardianship assistance reporting population regardless of whether a financial subsidy is paid on the child's behalf. For example, a title IV-E agency would include in this reporting population a child with a finalized adoption under a title IV-E adoption assistance agreement that contains a subsidy amount of $0, for the purposes of receiving only Medicaid assistance.

With the increased activity in adoption and the corresponding outlays for the program, there has been an increase in requests for information from Congress, States, the media and other sources, regarding the population of adopted children receiving title IV-E assistance. In addition, section 479(c) of the Act mandates that we collect information on the extent and nature of assistance provided by Federal adoption programs and the characteristics of the child with respect to whom such assistance is provided. Although we propose for a title IV-E agency to report only children with finalized adoptions under title IV-E agreements in the adoption and guardianship assistance data file, we believe that the information proposed here in conjunction with the information proposed in paragraphs 1355.43(e) through (h) of the out-of-home care data file may present a more comprehensive picture of adoptions supported through the title IV-E program.

In paragraph (b)(1)(ii), we propose to collect the information in section 1355.44 on any child in a legal guardianship who is under a title IV-E guardianship assistance agreement, pursuant to section 473(d) of the Act, with the reporting title IV-E agency that is or was in effect at some point during the current report period. Information on each child adopted with the involvement of the title IV-E agency is currently reported to AFCARS, but no information is collected regarding children in legal guardianships. In the 2008 NPRM we proposed to collect limited information on any child on whose behalf a guardianship assistance payment was made pursuant to a title IV-E or State assistance agreement with the title IV-E agency. At the time the 2008 NPRM was published, the only subsidized guardianships under title IV-E were those in States with demonstration waivers.

We propose to collect information on any child in a legal guardianship receiving title IV-E guardianship assistance to gather data on children supported through the title IV-E guardianship assistance program established via changes to section 473(d) of the Act made by Public Law 110-351 in October 2008. To date, 31 title IV-E agencies have applied to participate in the title IV-E guardianship assistance program and additional title IV-E agencies may do so in the future. Comments to the 2008 NPRM, which pre-dated title IV-E authority for title IV-E guardianship assistance payments, were mixed regarding the proposal to collect information about children in legal guardianships on an ongoing basis. Some commenters believed this information was among the most helpful enhancements proposed for AFCARS while others had concerns about intrusion into the lives of guardianship families and the agency's ability to collect accurate data on these families. We received similar comments to the 2010 FR Notice from several States opposed to collecting data on legal guardianships. States were particularly concerned about intrusiveness, inability and lack of authority to gather the data. To address some of these concerns, we modified our proposal in paragraph (b)(2) to limit the adoption and guardianship assistance reporting population to only those children who are in a legal guardianship under a title IV-E guardianship assistance agreement, rather than all children receiving State or Federal guardianship assistance. In addition, we propose to collect only basic demographic information and information readily accessible regarding the child's title IV-E guardianship arrangement and assistance agreement in effect during the report period. As such, there is minimal intrusion on the legal guardian(s), if any, and the title IV-E agency has ready access to the information requested via the title IV-E guardianship assistance agreement.

While there is no statutory mandate to collect information for children who have achieved permanency through legal guardianship, unlike that for adoption, we propose to collect this limited information because we have the same need for information on children supported by title IV-E funding, per section 473(d) of the Act as we do for adopted children. Title IV-E agencies are currently required to collect and report financial information for children under title IV-E guardianship assistance agreements per Form CB-496, in the same manner that title IV-E agencies are to report information on children under title IV-E adoption assistance agreements. While we receive aggregate information on number of guardianships and average subsidy amounts through Form CB-496, we propose to collect child-level information on guardianships through AFCARS to conduct more nuanced data analysis on the characteristics of children under title IV-E guardianship assistance agreements.

Commenters to the 2008 NPRM also expressed concern with using the term “legal guardian” because States may use different terms in practice. This is no longer an issue since the guardianship

assistance data file is comprised of children under a relative legal guardianship per section 473(d) of the Act and the statute defines the term “legal guardianship” in section 475 of the Act.

In paragraph (b)(2), we clarify that a child remains in the adoption and guardianship assistance reporting population through the end of the report period in which the title IV-E agreement ends or is terminated. Neither the current AFCARS regulations nor the 2008 NPRM proposal include such clarification regarding the circumstances under which a child exits the reporting population for this data file. We propose to include this information to respond to commenters to the 2008 NPRM who requested clarification on the circumstances of exit for the adoption and guardianship assistance reporting population, and length of time title IV-E agencies are required to collect information on a child in this reporting population.

Section 1355.42 Data Reporting Requirements

We propose to add a new section 1355.42 on data reporting requirements, including specifying the report periods for the data files, general provisions for collecting and submitting the out-of-home care and adoption and guardianship assistance data files and record retention rules to comply with AFCARS requirements. This section was first proposed in the 2008 NPRM.

Section 1355.42(a) Report Periods and Deadlines

In paragraph (a), we propose that each title IV-E agency submit an out-of-home care data file and an adoption and guardianship assistance data file to ACF on each child in the reporting populations on a semi-annual basis. The two six-month report periods are from October 1 to March 31 and from April 1 to September 30 of each Federal fiscal year. These report periods are the same as in the existing AFCARS, and also were proposed in the 2008 NPRM.

In consultations held prior to the publication of the 2008 NPRM, there were several suggestions that we consider moving to annual, or even less frequent reporting, rather than semi-annual reporting of AFCARS data. Specifically, in the consultations held prior to the 2008 NPRM, commenters were concerned that ACF would be unable to compile an annual data file from two semi-annual submissions for the purposes of the current CFSRs and the annual outcomes report to Congress. However, we can assure title IV-E agencies that our software currently allows us to create an annual data file for these purposes. We also expect that the new requirements proposed for using a permanent and encrypted person identification number (sections 1355.43(a)(4) and 1355.44(a)(3)) will aid both our own and title IV-E agencies' ability to create annual data files. ACF explained the rationale for proposing to maintain semi-annual submissions for AFCARS in greater detail in the preamble of the 2008 NPRM (73 FR 2088).

We also propose in paragraph (a) that title IV-E agencies submit their data files to us within 30 calendar days of the end of the report period. Therefore, a title IV-E agency will be required to submit AFCARS data files to ACF every year by April 30 and October 30. If this date falls on a weekend, the title IV-E agency must submit the data files by the end of the following Monday. This is a change both from the current AFCARS, which allows a 45 day period in which agencies are required to submit their data files to ACF and from the 2008 NPRM where we proposed a 15 day submission deadline. Commenters to the 2008 NPRM believed that 15 days was an insufficient amount of time to prepare and submit data files. We noted these concerns and extend the proposed submission deadline to 30 days. We believe that a 30 day timeframe is workable and also will better meet title IV-E agency and Federal needs for data for the reasons described below.

AFCARS data is used extensively in a number of ACF priorities and requirements, including the current CFSRs and other monitoring efforts. If ACF receives AFCARS data closer to the end of the report period than we do now, this data may be available sooner to support analysis, which can be used to develop change and/or improvement initiatives. Also, because Adoption and Legal Guardianship Incentive funds are tied to how well States perform in increasing their rate of adoptions and legal guardianships as seen in the AFCARS data (section 473A(c)(2) of the Act), receiving this information more quickly can help to prevent delays in the awarding of incentive funds to States. The vast improvements in automation in the field of child welfare strengthen our belief that a title IV-E agency can prepare data files within 30 days. Many title IV-E agencies now have the ability to record and verify data in a more timely fashion than when the original AFCARS regulation was issued in 1993 (58 FR 67924). Finally, we have provided significant technical assistance to title IV-E agencies to encourage ongoing quality assurance checks on the data recorded in their information systems. We believe that title IV-E agencies will be able to meet this shorter time frame for submitting data with continued and routine use of our data quality utilities.

Finally, in paragraph (a) we require that title IV-E agencies submit their data to us in two separate data files: (1) Out-of-home care; (2) adoption and guardianship assistance. Currently, agencies must submit four data files (Appendices A and B to 45 CFR 1355): (1) A detailed foster care data file with information on all children in foster care during the report period; (2) a detailed adoption data file with information on all children adopted during the report period in whose adoption the title IV-E agency has some involvement; (3) a foster care summary data file in which the title IV-E agency indicates the total number of foster care records and the age distribution of children in those records; and, (4) an adoption summary data file in which the title IV-E agency indicates the total number of adoption records and the age distribution of the children adopted.

As in the 2008 NPRM, we propose to eliminate the existing foster care and adoption summary data files because they are no longer necessary. ACF originally intended to use the summary data files to verify the completeness of a title IV-E agencies' data submissions and to ensure that the data file was not corrupted during transmission. The summary data files also served as a quick count of the number of children in foster care and those being adopted. However, because the summary data files contain aggregate data, the number of children entering, discharged, adopted, served or in care on a specific day cannot be determined. Further, we are now able to use new technology that is better able to verify the completeness of a data submission without requiring the title IV-E agency to generate summary data files. Commenters to the 2008 NPRM were appreciative and supportive of the deletion of the summary data files.

Section 1355.42(b) Out-of-Home Care Data File

In paragraph (b), we provide instructions on how the title IV-E agency must report information required under the proposed section 1355.43 for each child in the out-of-home care reporting population, as defined in section 1355.41(a).

Specifically, in paragraph (b)(1), we propose that a title IV-E agency submit the most recent information for data elements in the General information and Child information sections of the out-of-home care data file (paragraphs

1355.43(a) and (b), respectively). We propose that the title IV-E agency report current, point-in-time data for these sections similar to the time frame for most existing AFCARS data elements. This information is largely demographic in nature, and tends to remain static over a six-month report period or even longer, and therefore we have no need for the title IV-E agency to report historical information for these data elements. For example, the child's date of birth does not change over the course of a report period. This proposal is unchanged from that included in the 2008 NPRM, and there were no comments specific to this proposal.

In paragraph (b)(2), we propose that a title IV-E agency submit the most recent and historical information for most data elements in the following sections of the out-of-home care data file Parent or legal guardian information, Removal information, Living arrangement and provider information, Permanency planning, General exit information and Exit to adoption and guardianship information (paragraphs 1355.43(c), (d), (e), (f), (g) and (h), respectively). This information is required unless the exception in paragraph (b)(3) applies. This means that for every data file submission, we seek information on the child's full range of experience while in out-of-home care under the title IV-E agency's placement and care responsibility as described through the reporting of these data elements. This will allow ACF to develop a comprehensive picture of a child's full range of experience with entries, living arrangements and permanency plans while in the title IV-E agency's placement and care responsibility, as well as exits from the out-of-home care population. This proposal, which is modified slightly from the 2008 NPRM to incorporate data collection on caseworker visits and transition plans, differs from how title IV-E agencies currently report foster care information under the existing AFCARS requirements; a title IV-E agency currently submits certain detailed information on the child's current foster care episode and current placement setting only as of the last day of the report period.

We propose that a title IV-E agency submit recent and historical information pertaining to termination of parental rights (TPR) petitions, TPRs, removals, permanency and transition plans, caseworker visits, living arrangements and exits from the out-of-home care reporting population every report period rather than requiring updates on children who were in out-of-home care previously or who remain in out-of-home care from one report period to the next. Part of our goal in developing this proposed regulation is to eliminate features of the existing AFCARS that result in data collection that lacks detailed information about each foster care episode a child experiences. We propose to ask title IV-E agencies for historical information, rather than to report only on changes in the child's living arrangements, permanency plans and entry into or exit from out-of-home care so that we have a way to verify that the child's experiences have, in fact, remained the same across several report periods. Without longitudinal data collection, we are unable to have a comprehensive picture of a child's placement history within each out-of-home care episode. We also believe that this approach is less burdensome on title IV-E agencies. Although sending a child's full history involves submitting more data to us than providing an update as children exit and re-enter out-of-home care and their living arrangements and permanency plans change, we believe that submitting a child's history is less complicated and therefore requires fewer agency resources than the alternative. In other words, sending a child's full history requires the title IV-E agency to submit all the information it has on these data elements, rather than figure out a way to pull out only the information that has changed each report period.

We believe there will be many benefits to obtaining this longitudinal data, including the elimination of the information gaps that exist in the current AFCARS data, which raise questions about the child's experiences and make the data more difficult to analyze, the capability to build upon ACF's ability to conduct sophisticated analyses on what happens to a child or groups of children in foster care and the ability to better inform the current CFSRs and other monitoring efforts, on outcome measures such as time in foster care, foster care re-entries and the stability of foster care placements. Commenters to the 2008 NPRM and the 2010 FR Notice were largely supportive of the shift in the data collection methodology to incorporate longitudinal reporting. Although some commenters expressed concerns about implementing a longitudinal methodology for AFCARS data with existing systems and increasingly limited resources, we believe that the potential to have improved data available for Federal monitoring efforts and other priorities provides a compelling reason for proposing these changes.

We decided to propose gathering comprehensive data on removals, permanency and transition plans and caseworker visits, living arrangements and exits after considering whether a more limited approach to developing longitudinal data would meet our needs for data analysis, as well as those of title IV-E agencies. As described in the 2008 NPRM, the limited option(s) we considered would require a title IV-E agency to submit detailed removal, permanency plan, living arrangement and exit information on the child's four most recent out-of-home care episodes and four most recent living arrangements only. This would have captured almost all foster care episodes without requiring title IV-E agencies to submit extensive histories on children. Similarly, limiting the number of living arrangements that title IV-E agencies would report in AFCARS data would minimize the burden of this approach.

Ultimately, we decided that this more narrow approach was not sufficient. One problem with a limited longitudinal database was that we would have no information on the children who present some of the more significant challenges to the child welfare system. Children who experience high numbers of multiple living arrangements or frequently enter and exit out-of-home care are some of the nation's most vulnerable children. Furthermore, these children often require title IV-E agencies to expend more of their resources to address their problems.

In paragraph (b)(3), we propose an exception to the requirement for title IV-E agencies to report complete historical and current information on all out-of-home care episodes for children in the reporting population. The exception applies to those children who had an out-of-home care episode, as defined in 45 CFR 1355.41(a), prior to the effective date of the forthcoming final rule. Specifically, the exception applies to: (1) Children who are in out-of-home care on the effective date of the final rule who also had a prior out-of-home care episode before this date; and (2) children who enter out-of-home care after the effective date of the final rule who had a prior out-of-home care episode before this date. For such children, we propose that the title IV-E agency report the child's Removal dates, Exit dates and Exit reasons (paragraphs 1355.43(d)(1), (g)(1) and (g)(3) respectively) for each out-of-home care episode that occurred before the effective date of the final rule. The exception does not apply to a child's out-of-home care episode that is open on or begins after the effective date of the final rule; for such children we propose that a title IV-E agency report

all information described in paragraphs (b)(1) and (b)(2) during that ongoing out-of-home care episode. For example, if the effective date of the final rule was June 1, 2011, the title IV-E agency must report complete information for a child who was either in the out-of-home care reporting population on that date or entered subsequently, but only data elements in paragraphs 1355.43(d)(1), (g)(1) and (g)(3) for each previous out-of-home care episode that the child had. As time passes after the final rule goes into effect, this provision will apply to a diminishing number of children who are in the out-of-home care reporting population. This exception is the same as that proposed in the 2008 NPRM, and the comments in response to this proposal were generally supportive.

We propose this exception to the general rule to report complete information to strike a balance between our desire for recent and historical information on all children in out-of-home care under the proposed new AFCARS data elements and the challenge that some agencies may face in gathering this information for a child's previous contacts with the child welfare system before these new rules go into effect. We chose to have a title IV-E agency report at least the child's prior removal and exit dates and exit reasons, because we believe these data elements are most critical to our ability to construct certain cohorts of children for analysis in outcome-based monitoring activities. Further, a title IV-E agency currently collects this information in the normal course of casework activities for children in foster care and reports some of this information in existing AFCARS data elements.

While our proposal is to mandate that title IV-E agencies provide three specific data elements for the prior out-of-home care episode(s) of a child who is in out-of-home care on the effective date of the final AFCARS rule, or enters out-of-home care after the effective date of the final rule, we expect the title IV-E agency to report as much information as possible for these prior out-of-home care episodes, and at least as much information as it reports currently under the existing AFCARS. We know that many title IV-E agencies currently collect comprehensive information that pertains to the proposed new data elements. Therefore, we believe that it is reasonable to expect that agencies may be able to provide us with some additional information on the new data elements regarding prior episodes in the absence of a mandate. A title IV-E agency that does not provide this additional information will not be penalized. A title IV-E agency that provides this information with errors also will not be penalized.

Section 1355.42(c) Adoption and Guardianship Assistance Data File

In paragraph (c), we propose that the title IV-E agency submit the most recent, point-in-time information for all data elements in the adoption and guardianship assistance data file that are applicable to the child during the report period. This information is needed only on the last day of the report period because while information may change over the course of years, many of the data elements in this data file are not likely to change during any given report period. For example, the amount of title IV-E adoption or guardianship assistance may remain static for the duration of the title IV-E assistance agreement or the amount may fluctuate over a number of years, depending on changes in foster care maintenance rates, whether the adoptive parent(s) or legal guardian(s) request a change in the amount of the title IV-E adoption or guardianship assistance amount, or changes in the child's circumstances. Regardless, capturing this information during each report period will allow ACF to better track and analyze the nature of title IV-E adoption and guardianship arrangements and assistance agreements and to make budget projections. This proposal was first introduced in the 2008 NPRM and received no substantive comments.

Section 1355.42(d) Reporting Missing Information

In paragraph (d), we propose how the title IV-E agency must report missing information. If the title IV-E agency fails to collect the information for a data element, the agency must report the data element as blank or missing. The title IV-E agency may not write the extraction code to default to a valid response option if caseworkers did not collect or enter those responses into the information system. This is the case even when there may be a response option for a data element that allows the title IV-E agency to indicate that the information is not yet determined or is unknown. This provision is consistent with ACF's longstanding practice; however, title IV-E agencies have pointed out that there is no official guidance on this issue. Therefore, we wish to state unequivocally that this practice of defaulting is not permitted.

This proposal was first introduced in the 2008 NPRM. Several commenters to the 2008 NPRM indicated that they felt it was not realistic to forbid a title IV-E agency to default or map information that caseworkers did not collect or enter into the information system to a valid response option, and that this proposal would increase caseworker burden. Commenters suggested that this proposal would require the caseworker to not only document the work they completed in a child's case, but also enter data into the case management system to indicate “not yet determined” in order to meet the AFCARS requirement for missing data. Although we considered these comments, the statutory mandate in section 479(c)(2) of the Act requires ACF to assure that any AFCARS data that is collected must be reliable and consistent over time. Permitting the practice of defaulting decreases the reliability of the AFCARS data collected in that data reported may not truly reflect the case-specific information and circumstances for each child in the reporting population. For these reasons, we again propose to prohibit the practice of a title IV-E agency having an information system default to or generate automatic responses.

Section 1355.42(e) Electronic Submission

In paragraph (e), we propose to continue requiring a title IV-E agency to submit its data files to ACF electronically, consistent with ACF's specifications. We currently provide guidance on submission of technical requirements and specifications through official ACF policy and technical bulletins. This proposal is the same as that included in the 2008 NPRM, and we received several comments in response to the 2008 NPRM requesting that ACF provide clarification on the type of technologies it anticipates the title IV-E agencies will use in the report submission process. We considered these comments, but learned through our experience with the existing AFCARS that it is prudent not to regulate the technical specifications for transmitting data. As technology changes, we must keep pace with the most current, practical and efficient transmission methods that will meet title IV-E agency and Federal needs. As such, we will continue to provide guidance through policy and technical bulletins.

Section 1355.42(f) Record Retention

In paragraph (f), we propose that title IV-E agencies retain records necessary to comply with the AFCARS reporting requirements outlined in proposed sections 1355.42 through 1355.44. In particular, we propose that the title IV-E agency's retention of AFCARS records is not limited to the

Departmental record retention rules in 45 CFR 92.42(b) and (c). These Departmental record retention rules require title IV-E agencies to retain financial and programmatic records, supporting documents and statistical records related to Federal programs and requirements for a period of three years. Because we seek comprehensive data on children in out-of-home care, including information on their prior experiences with the child welfare system, we view the three-year retention period to serve as a minimum.

Practically, this means the title IV-E agency must keep applicable records until the child is no longer of an age to be in the reporting populations. Additionally, this means that the title IV-E agency must keep applicable records for a minimum of three years when a child exits the reporting population due to age. This is because we propose that a title IV-E agency keep a child's identification number consistent over time and indicates the child's entire history with the child welfare system. This proposal is the same as in the 2008 NPRM. We received several comments in response to this proposal in the 2008 NPRM that indicated concerns regarding the cost of retaining both electronic and paper records. We considered these comments; however, since a child's information is likely to be contained in an electronic format through the IV-E agency's automated information system and is relatively simple to archive and store, we believe the proposed record retention rules are reasonable. Also, based on our experience through SACWIS and AFCARS reviews, title IV-E agencies currently maintain the child's information in their systems until a child reaches the age of majority.

Section 1355.43 Out-of-Home Care Data File Elements

Section 1355.43(a) General Information

In paragraph (a), we propose that title IV-E agencies collect and report general information that identifies the reporting title IV-E agency as well as the child in out-of-home care.

Title IV-E agency.

In paragraph (a)(1), we propose that the title IV-E agency indicate the name of the title IV-E agency responsible for submitting AFCARS data to ACF. A State title IV-E agency must indicate its State name for identification purposes. ACF will work with Tribal title IV-E agencies to provide further guidance, including a list of valid response options, during implementation. This proposal differs from the existing AFCARS regulation, which requires the title IV-E agency to identify itself using the U.S. Postal Service two letter abbreviation for the State or the ACF-provided abbreviation for the title IV-E Tribal agency responsible for submitting the AFCARS data to ACF. This proposal also is different from the 2008 NPRM in which we proposed to use Federal Information Processing Standard (FIPS) codes for State identification. We did not receive comments on this data element in response to the 2008 NPRM but have opted not to proceed with the NPRM proposal to remove FIPS codes, which are no longer being updated and maintained.

Report date.

In paragraph (a)(2), we propose that a title IV-E agency indicate the report period date. Specifically, a title IV-E agency will report to us the last month and year that corresponds with the end of the report period, which will always be either March or September of any given year. The information we propose to collect is the same as in the existing AFCARS regulations, and was proposed in the 2008 NPRM. We received no comments on this data element in response to the 2008 NPRM.

Local agency.

In paragraph (a)(3), we propose that the title IV-E agency report to us the name of the local county, jurisdiction or equivalent unit that has responsibility for the child. This proposal differs from current AFCARS regulations, which instruct the title IV-E agency to identify the local agency using the five digit FIPS code of the county or ACF-provided abbreviation for the Indian Tribe local unit, and the 2008 NPRM which proposed that the title IV-E agency indicate the FIPS code for the local agency. We received several comments in response to the 2008 NPRM that indicated concern about continuing to use FIPS codes for jurisdictions below the State level. We agree with these comments, and since FIPS codes are no longer being updated and maintained, we propose revisions to this data element to remove FIPS codes. ACF will work with Tribal title IV-E agencies to provide further guidance, including a list of valid response options, for this element during implementation.

Child record number.

In paragraph (a)(4), we propose that the title IV-E agency report the child's record number, which is a unique person identification number, as an encrypted number. The child record number must remain the same for the child no matter where the child lives while in the placement and care responsibility of the title IV-E agency and across all report periods and out-of-home care episodes. As discussed in section 1355.44, we also propose to require the title IV-E agency to use this child record number for reporting if the child exits the out-of-home care data file and enters the reporting population for the adoption and guardianship assistance data file. The title IV-E agency must apply and retain the same encryption routine or method for the child record number across all report periods. The title IV-E agency's encryption methodology must meet all ACF standards prescribed through technical bulletins or policy.

The existing AFCARS requirement is for the title IV-E agency to report the sequential or unique number that follows the child as long as he or she is in foster care. We now propose, as we did in the 2008 NPRM, to revise the child record number data element to no longer allow agencies to use sequential numbers for AFCARS. Rather, title IV-E agencies are to use encryption and consistent numbers. The proposed changes to this data element are based on findings from AFCARS reviews, technical assistance, and public comments, described at length in the 2008 NPRM, which indicate that there are circumstances in which title IV-E agencies use different record numbers for the same child. We received a number of comments in response to the 2008 NPRM applauding the inclusion of this data element that meets a long standing need for data about a child's total experience in out-of-home care, as well as several comments seeking clarification and technical assistance around this data element. Through these proposed revisions, title IV-E agencies will keep a child's record number consistent through his or her out-of-home care experience, and utilize encryption to ensure that the child's identity will remain confidential. Ensuring that the child record number is consistent throughout placement changes also will assist in the analysis of NYTD data, which requires States to use a child's AFCARS child record number for identification.

This proposed data element, however, is different from the 2008 NPRM proposal in that we do not propose to retain the exception that a title IV-E agency may provide a new child record number if the child was previously adopted. Initially proposed in the 2008 NPRM, this exception applied to a child who re-enters out-of-home care following an adoption. In addition to the public comments received in response to the 2008 NPRM that support maintaining a consistent identification number throughout a child's out-of-home care experience, we are not retaining this exception so that we may collect information on the experience of

sibling groups in the child welfare system through out-of-home care placements. By ensuring that title IV-E agencies use consistent child record numbers, it may be possible to capture information over time on the total experience of sibling groups in the child welfare system.

Finally, we would like to note that we are not continuing our 2008 NPRM proposal to require title IV-E agencies to report a unique and encrypted Family Record Number that is associated with the child. We acknowledge that defining “family” for the purposes of this data element may be challenging for title IV-E agencies and understand from commenters to the 2008 NPRM that associating a family record number with each child may be technically difficult for State and Tribal agency systems. We instead propose to collect information in both paragraph (e) and proposed section 1355.44 to aid in the identification of sibling groups, and we discuss these proposals later in this NPRM.

Section 1355.43(b) Child Information

In paragraph (b), we propose that title IV-E agencies collect and report various characteristics of the child in the out-of-home care reporting population.

Child's Birth Information.

In paragraph (b)(1), we propose to collect information on the child's date of birth and whether the child was born in the United States.

In paragraph (b)(1)(i), we propose to require title IV-E agencies to report the month, day and year of the child's birth, which is what we proposed in the 2008 NPRM. This proposal differs slightly from the instruction included in existing AFCARS regulations regarding a child's date of birth in that we do not require the title IV-E agency to report an abandoned child's date of birth as the 15th of the month. As detailed in the 2008 NPRM, we are not retaining this requirement because AFCARS reviews revealed that many title IV-E agencies were not aware of this instruction or that workers were reluctant to enter an unknown birth date as the 15th of the month. Therefore, we are requiring that the title IV-E agency always provide the child's actual or estimated date of birth. There were no substantive comments on this data element in response to the 2008 NPRM.

In paragraph (b)(1)(ii), we propose to require the title IV-E agency to report whether or not the child was born in the United States. If the child was born in the United States, indicate “yes.” If the child was born in a country other than the United States, indicate “no.” This is a newly proposed data element and will give us a national picture of how many foreign-born children are in out-of-home care. We specifically request comments from State and Tribal title IV-E agencies on this data element.

Child's sex.

In paragraph (b)(2), we propose that the title IV-E agency report whether the child's is male or female, as appropriate. This proposal mirrors both the 2008 NPRM proposal and the existing regulation. There were no substantive comments in response to this proposed data element in response to the 2008 NPRM.

Child's race.

In paragraph (b)(3), we propose to require the title IV-E agency to report information on the race of the child. Each racial category is a separate data element to represent the fact that the OMB standards require title IV-E agencies to allow an individual to identify with more than one race. Consistent with the OMB standards, self-reporting or self-identification is the preferred method for collecting data on race and ethnicity. This means that the title IV-E agency is to allow the child, if age appropriate, or the child's parent(s) or legal guardian(s) to determine the child's race.

The response options proposed are slightly different from those in the existing AFCARS, but are similar to the 2008 NPRM proposal and to those in the NYTD (see 45 CFR 1356.80). One difference in the current proposal is that we allow, in addition to the child and the child's parent(s), legal guardians to determine the child's race. We are including this option to acknowledge that a legal guardian, rather than the child's parent(s), may be the appropriate person to determine the child's race, if that child has been living with him or her. The racial categories of American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander and White listed in proposed paragraphs (b)(3)(i) through (b)(3)(v) are consistent with the OMB Revised Standards for the Classification of Federal Data on Race and Ethnicity, as described in the 2008 NPRM. There were several public commenters in response to both the 2008 NPRM and 2010 FR Notice that suggested aligning response options regarding a child's race with other Federal data reporting efforts such as NCANDS or NYTD race categories. We agree, and the racial categories proposed both in the 2008 NPRM and the current proposal are aligned with those in NCANDS and NYTD, in addition to being consistent with OMB race and ethnicity standards as described above.

In the 2008 NPRM, we propose that if the child's race is “unknown,” the title IV-E agency is to so indicate in paragraph (b)(3)(vi). However, we now propose to clarify that “unknown” must also be selected if the child or his or her parent(s) or legal guardian(s) cannot communicate the child's race. This response option serves to replace “unable to determine” currently included in AFCARS. A child's race can be categorized as “unknown” only if a child or his or her parent(s) or legal guardian(s) does not actually know the child's race, or the child or his or her parent(s) or legal guardian(s) is unable to communicate the child's race. Using “unknown” to report the fact that the title IV-E agency has not asked the child or his or her parent(s) or legal guardian(s) for the child's race is not an acceptable use of this response option. Further, it is acceptable for the child to identify that he or she is multi-racial, but does not know one of those races. In such cases, the title IV-E agency must indicate the racial classifications that apply and also indicate that a race is unknown.

In the 2008 NPRM we proposed to introduce two new response options, currently not in AFCARS, that we include in our proposal. We propose that if the child's race cannot be determined because the child is “abandoned,” the title IV-E agency must so indicate in paragraph (b)(3)(vii). We provide a definition of abandoned so that we are clear that the term should be used in very restrictive circumstances and not any time a parent may be temporarily unavailable. If a child who was abandoned as an infant later identifies as being of a certain race or multiple races, the title IV-E agency must indicate the applicable race(s), rather than “abandoned.” Finally, we propose that in the situation in which the child or his or her parent(s) or legal guardian(s) “declines” to identify any race, the title IV-E agency must so indicate in paragraph (b)(3)(viii).

Child's Hispanic or Latino ethnicity.

In paragraph (b)(4), we propose to require that a title IV-E agency report the Hispanic or Latino ethnicity of the child. This proposed data element is similar to that proposed in the 2008 NPRM. The only difference in the current proposal is that, in addition to the child or the child's parent(s), we allow the legal guardian(s) to determine the child's ethnicity. We include this option to acknowledge that a legal guardian, rather than the child's parent(s), may be the appropriate person to determine the child's ethnicity, if that child has been living with him or her. This proposal differs from the existing AFCARS in that we propose here that the child's ethnicity be self-determined by the child, or determined by his or her

parent(s) or legal guardian(s), consistent with OMB race and ethnicity standards. As in the 2008 NPRM proposal, we also propose that the title IV-E agency may report the following response options, not currently included in AFCARS whether the child's ethnicity is “unknown” because the child or the child's parent(s) or legal guardian(s) does not know or cannot communicate the information, whether the child is “abandoned” or the child or the child's parent(s) or legal guardian(s) “declined” to provide this information.

In paragraphs (b)(5) and (b)(6), we propose for the first time that the title IV-E agency collect information on health assessment(s) that the child has received while in foster care. We specifically seek information on the date of the child's most recent health assessment and whether the child has been receiving health assessments in a timely manner to ensure that the title IV-E agency is performing health assessments on each child in a foster care placement in accordance with their own established schedule, per the statutory requirements in section 422(b)(15)(A) of the Act. In paragraph (b)(6), if the child has missed a required health assessment in the past but has now received all required health assessments, the title IV-E agency must indicate “yes.” We have learned through technical assistance that many title IV-E agencies are already collecting information regarding the receipt of health assessments for each child in foster care, including the dates of each assessment, and therefore, the inclusion of this proposal should not place significant burden on the title IV-E agency.

ACF believes that it is important to ensure that the title IV-E agency is identifying and addressing the health needs of children in foster care. Proposing to require the title IV-E agency to report health assessment information provides ACF an opportunity to ensure that the title IV-E agency is identifying a child's critical health needs through routine health assessments and that these needs are appropriately addressed and reviewed by a medical professional. For example, if a child is receiving health assessments according to the schedule established by the title IV-E agency per section 422(b)(15)(A) of the Act, we can assume that the medical professional(s) performing the screening will identify and address health needs such as immunization updates, need for services, and appropriate use of medications. We believe that this information will serve as a proxy for other indicators of well-being in addition to providing health assessment information for each child in the out-of-home care reporting population. We welcome comments on this proposal.

Health, behavioral or mental health conditions.

In paragraph (b)(7), we propose to require title IV-E agencies to report whether a child has been diagnosed by a qualified professional as having one or more health, behavioral or mental health conditions prior to or during the child's current out-of-home care episode as of the last day of the report period. In the existing AFCARS the title IV-E agency is required to collect similar information on a child's conditions in the data element “child disability.” In the 2008 NPRM we proposed to revise the data element name and require title IV-E agencies to collect information on an expanded list of health, behavioral or mental health conditions. Our current proposal utilizes the expanded list of condition types as proposed by the 2008 NPRM, but is modified as detailed below.

If a title IV-E agency indicates that the child has a diagnosed condition, we now propose to require the title IV-E agency to indicate “existing condition,” “previous condition” or “does not apply,” as applicable for each of the categories of conditions in paragraphs 1355.43(b)(7)(i) through (b)(7)(xii). A title IV-E agency must report a diagnosed condition known prior to or during the child's current out-of-home care episode as of the last day of the report period. If the child was diagnosed with a condition prior to entry, and that condition is still applicable to the child when he or she enters foster care, the title IV-E agency must indicate this as an “existing condition.” If the title IV-E agency is aware and obtained a medical summary, then this information should be recorded and reported in AFCARS data as an “existing condition.” Consequently, if a child was diagnosed for a condition that is resolved, the title IV-E agency must report this diagnosis as a “previous condition.” For instance, a child may have been born with a congenital defect that fits in the physically disabled category and has undergone treatment for the condition such that the condition no longer impairs the child's day-to-day motor functioning.

This proposal differs from the 2008 NPRM proposal and existing AFCARS regulations. In the 2008 NPRM we proposed to require a title IV-E agency to indicate “applies” or “does not apply” for each response option. We propose now to require a title IV-E agency to indicate “previous condition” versus “existing condition” specifically to collect ongoing information on conditions that the child was previously diagnosed with, but do not currently apply to the child. We were unable to distinguish between current and prior diagnoses with our 2008 NPRM proposal. In addition, we were unable to capture comprehensive information in current AFCARS regulations and our 2008 NPRM proposal regarding a child's diagnosed health, behavioral and mental health conditions beyond the current AFCARS report period, which this proposal will allow. Collecting additional information regarding conditions for which the child was previously diagnosed but do not exist as current diagnoses will provide increased opportunities for analysis regarding the health and service needs of children in out-of-home care. While this information will be updated in the AFCARS file each report period, the structure will permit ACYF to produce longitudinal files for research, and/or provide the information required to link records across report periods in the public use data sets. However, we seek public comment regarding the utility of collecting the health-related data elements such that the information provided for a child on a previous data submission is not overwritten, but instead is included in each data file with the new information (with dates indicating the date of data submission for each set of health-related data elements). We also seek comment on whether there are further steps that should be taken in this area to provide usable, accurate, and reliable longitudinal information about a child's health conditions.

We proposed to modify the list of conditions in current AFCARS regulations in the 2008 NPRM that title IV-E agencies currently report, creating separate response options for visually and hearing impaired (combined in current regulation) and adding the following diagnosed conditions as response options anxiety disorder, childhood disorders, learning disability, substance use-related disorder and developmental disability. We propose to make a minor change to the list by renaming “mental retardation” as “intellectual disability,” but we intend to maintain the definition of “mental retardation” that was included in the 2008 NPRM. Our reasoning for making this name change is to conform with the proposed changes to the Diagnostic and Statistical Manual of Mental Disorders-V (DSM-V), the changes made by Public Law 111-256 that solidified the use of “intellectual disability” in Federal law and the increasing focus on cultural sensitivity to the term “mental

retardation.” In response to the requirements in Public Law 113-183 to include information in the annual Child Welfare Outcomes Report on children in foster care who are pregnant, we propose the addition of “pregnant” to the list of conditions. This information is required to be included in the annual report beginning in FY 2016. Other than the changes described above, we have chosen to continue the definitions for the proposed conditions without additional changes both to maintain consistency with currently reported conditions, and to limit burden placed on title IV-E agencies associated with making changes to this data element. We welcome comments on this proposal.

In response to the 2008 NPRM, several commenters expressed concern regarding the additional training that caseworkers would require to capture and categorize detailed clinical information, as well as concerns regarding the impact of the new data elements on the SACWIS system and programmatic data elements. However, as we described in the 2008 NPRM, we believe that collecting information pertaining to the health characteristics of a child is important in understanding the length of time children remain in care, their placement needs, number of placements, and, in general, the needs of children being served by the title IV-E agency. In addition, requiring this information is consistent with the provision in section 475(1)(C) of the Act for the title IV-E agency to have a case plan that includes the child's health records and known medical problems. We have observed, through our AFCARS reviews and Technical Assistance provision, that many title IV-E agencies already collect comprehensive information from medical and health assessments for children in foster care, and this information is often incorporated as part of a child's case record.

Finally, consistent with existing AFCARS and detailed in the 2008 NPRM, we propose to continue requiring that the title IV-E agency indicate diagnoses made by a qualified professional as determined by applicable laws and policies of the State or Tribal service area. A qualified professional may include a doctor, psychiatrist or, if applicable in the State or Tribal service area, a licensed clinical psychologist or social worker.

School enrollment.

In paragraph (b)(8), we propose for the first time that the title IV-E agency report whether a child is currently a full-time student at and enrolled (or in the process of enrolling) in school as of the last day of the report period or on the day of exit for a child exiting out of home care prior to the end of a report period. We propose that the title IV-E agency report the child's school enrollment by indicating “elementary,” “secondary,” “post-secondary education or training” or “college.” We propose that a child who has not reached the age for compulsory school attendance must be identified as “not school-age” and a child who has reached the age for compulsory school attendance, but is not enrolled or in the process of enrolling in any school setting full-time must be identified as “not enrolled.”

For the purposes of AFCARS, we propose that for a child to be “enrolled” in school he or she must meet the statutory definition of “elementary or secondary school student” at section 471(a)(30) of the Act or participate full-time in college or post-secondary education/training activities. An “elementary or secondary school student” per section 471(a)(30) of the Act means that the child is (A) enrolled (or in the process of enrolling) in an institution which provides elementary or secondary education, as determined under the law of the State or other jurisdiction in which the institution is located; (B) instructed in an elementary or secondary education program in accordance with a home school law of the State or other jurisdiction in which the home is located; (C) in an independent study elementary or secondary education program, in accordance with the law of the State or other jurisdiction in which the program is located, that is administered by the local school or school district; or (D) incapable of attending school on a full-time basis due to the medical condition of the child, which incapability is supported by regularly updated information in the case plan of the child.

We propose that, for the purposes of AFCARS, enrollment in “post-secondary education or training” refers to full-time enrollment in any post-secondary education or training, including vocational training, other than an education pursued at a college or university. Enrollment in “college” refers to a child that is enrolled full-time at a college or university.

We propose that the title IV-E agency collect and report information on the child's school enrollment for the first time in an effort to learn more about the well-being and stability of children served by title IV-E agencies. ACF agrees with commenters in response to the 2010 FR Notice in the importance of addressing the educational needs of youth in foster care. In addition, some title IV-E agencies already collect information on school enrollment, and consider this information to determine placements for a child entering foster care or to change foster care placements. We propose to collect information in AFCARS on school enrollment in particular to respond to this interest, and to address the new requirement in section 471(a)(30) of the Act (amended by Pub. L. 110-351) that title IV-E agencies must assure in their title IV-E plan that each child receiving a title IV-E payment who has attained the age for compulsory school attendance is a full-time elementary or secondary student, as defined above, or has completed secondary school as described in ACYF-CB-PI-10-11. This statutory requirement is designed to ensure that a child of appropriate age is enrolled full-time or is in the process of enrolling in an elementary or secondary school, if the child has not already completed secondary school.

Further, we propose to collect information on a child's enrollment in college and/or post-secondary education/training for all children in the out-of-home care reporting population, which includes children receiving extended title IV-E assistance beyond age 18. Some commenters to the 2010 FR Notice were resistant to us requiring title IV-E agencies to report additional education data elements; however, the majority of commenters indicated interest in the collection of data in AFCARS that directly addresses a child's educational experience, given the increasing emphasis on education in foster care. The data elements in paragraphs (b)(8) through (b)(12) of this section are proposed, in part, to address this identified need for information, as well as to collect information on children receiving extended title IV-E assistance per the option provided in section 475(8)(B) of the Act. We welcome comments on this proposal.

Educational level.

In paragraph (b)(9), we propose for the first time that a title IV-E agency report the highest educational level, from Kindergarten to college or postsecondary education/training, completed by the child as of the last day of the report period. If a child has not yet reached the minimum age for compulsory school attendance, as determined by applicable State/Tribal law, the title IV-E agency must indicate that the child is “not school-age.” Title IV-E agencies are not currently required to report this information in AFCARS and this proposal replaces the

Educational performance

data element we proposed in the 2008 NPRM to require a title IV-E agency to report information on whether the child has

repeated a grade in school and the number of times a child has repeated a grade. Comments in response to the 2008 NPRM questioned the value of collecting information on whether a child has repeated grades in school. Commenters to the 2008 NPRM also suggested that reporting data on repeated grades was not useful, as this information provided an incomplete picture of a child's educational progress. We agree a revision is needed, given the passage of Public Law 110-351, and instead propose that a title IV-E agency collect information on a child's recently completed grade level, which measures educational progress and aligns with statutory changes made by Public Law 110-351.

Title IV-E agencies must report the highest educational level that the child has completed as of the last day of the report period, rather than the child's current educational level. For example, the title IV-E agency should indicate “Kindergarten” if the child has completed Kindergarten or is currently in or about to begin 1st grade. The title IV-E agency must indicate “college” if the child has completed at least one semester of study at a college or university, and indicate “post-secondary education or training” if the child has completed any amount of time in post-secondary education or training (

e.g.,

vocational or job skills training) other than an education pursued at a college or university.

We seek this information in an effort to learn more about a child's well-being while in out-of-home care. We believe that collecting the highest educational level completed from Kindergarten to college or post-secondary education/training is an appropriate indicator of educational achievement because it is a measure that does not vary greatly among jurisdictions, and is appropriate for all school-age children. The highest level of education completed is relatively simple for a title IV-E agency to collect and report, and there is evidence from AFCARS reviews and technical assistance that at least a few title IV-E agencies already collect this information. Further, we believe that this data element is consistent with the statutory requirement for title IV-E agencies to compile information on health and education records of the child, including information on the child's grade level performance while in foster care (section 475(1)(C)(ii) of the Act) and we believe that it would be beneficial to collect this information in AFCARS so that we can analyze trends in the relationship between a child's age and his or her educational achievement. While this information will be updated in the AFCARS file each report period, the structure will permit ACYF to produce longitudinal files for research, and/or provide the information required to link records across report periods in the public use data sets. However, we seek public comment regarding the utility of collecting data on a child's education level such that the information provided for a child on a previous data submission is not overwritten, but instead is included in each data file with the new information (with dates indicating the date of data submission associated with each grade level). We also seek comment on whether there are further steps that should be taken in this area to provide useable, accurate, and reliable longitudinal information about a child's educational level.

Educational stability.

In paragraph (b)(10), we propose for the first time to require title IV-E agencies to collect and report whether the child is enrolled or is in the process of enrolling in a new elementary or secondary school prompted by an initial placement into foster care or a placement change that occurred within the report period if applicable. This information is not longitudinal and will be captured each report period. As described in paragraph (b)(8), for the purposes of AFCARS, a child is considered to be “enrolled” in an elementary or secondary school if the child meets the statutory definition of “elementary or secondary school student” at section 471(a)(30) of the Act.

New school enrollments, for the purposes of AFCARS, are indicated by any school change that occurs prompted by a child's initial placement after entering foster care or any subsequent living arrangement change, whether or not the child was ever previously enrolled in the “new” school. If there is a new enrollment in an elementary or secondary school for the child, we propose to require the title IV-E agency to provide additional information on the reason that prompted this new enrollment in paragraphs (b)(10)(i) through (b)(10)(vii), by indicating whether each condition “applies” or “does not apply.” In paragraph (b)(10)(i), we propose that the title IV-E agency indicate “proximity” if the child enrolled in a new elementary or secondary school because the distance to his or her former school was too far from the child's out-of-home care placement, there was a lack of transportation to the child's former school or proximity was otherwise a factor in the decision for the child to change schools. In paragraph (b)(10)(ii), we propose that the title IV-E agency indicate “district/zoning rules” when the child enrolled in a new school because State/Tribal or local policies, laws or regulations prohibit the child from attending his or her former school as a result of an initial placement into foster care or a subsequent change in living arrangements. In paragraph (b)(10)(iii), we propose that the title IV-E agency indicate “residential facility” when the child enrolled in a new school because he or she formerly attended school on the campus of a residential facility. Facilities of this type could include residential treatment centers, as well as child care institutions. In paragraph (b)(10)(iv), we propose that the title IV-E agency indicate “services/programs” when the child enrolled in a new school to participate in services or programs that are not offered at his or her former school. These services could include, but are not limited to, specialized academic support programs, behavior modification programs, residential education programs or other supportive services that would benefit the well-being of the child. In paragraph (b)(10)(v), we propose that the title IV-E agency indicate “child request” if the child enrolled in a new school because he or she requested to leave the previous school. In paragraph (b)(10)(vi), we propose that the title IV-E agency indicate “parent/legal guardian request” if the child enrolled in a new school because his or her parent(s) or legal guardian(s) requested for the child to leave the previous school. Finally, in paragraph (b)(10)(vii), we propose that the title IV-E agency indicate “other” if the child enrolled in a new elementary or secondary school due to a reason that was not included in paragraphs (b)(10)(i) through (b)(10)(vi).

We seek this information because we are interested in gathering information on the reasons that prompt a change in school enrollment for children upon an initial placement into foster care or as the result of a subsequent change in living arrangements. In addition, we propose the collection of information regarding educational stability to conform to changes introduced in Public Law 110-351 that added a case plan requirement to ensure the development of a plan for the educational stability of a child in foster care as established in section 475(1)(G) of the Act.

Although some commenters to the 2010 FR Notice indicated that collecting this data would increase the burden for caseworkers who have trouble obtaining this information, many commenters to the 2008 NPRM and 2010 FR Notice supported the collection of this

information in AFCARS. In addition, we have learned through AFCARS reviews and technical assistance that some title IV-E agencies already collect this information and utilize it when considering placements for children entering foster care. We considered the comments concerned about the increased burden, however, we believe that collecting information on the reasons title IV-E agencies determine that remaining in the school of origin or a previous school is not in the child's best interest will help to identify and address barriers to educational stability after an initial placement into foster care or a change in living arrangements.

While this information will be updated in the AFCARS file each report period, the structure will permit ACYF to produce longitudinal files for research, and/or provide the information required to link records across report periods in the public use data sets. However, we seek public comment regarding the utility of collecting information on educational stability such that information provided for a child on a previous data submission is not overwritten, but instead is included in each data file with the new information (with dates indicating the date of data submission for each change in school enrollment). We also seek comment on whether there are further steps that should be taken in this area to provide usable, accurate, and reliable longitudinal information about a child's educational stability.

Special education.

In paragraph (b)(11), we propose to require the title IV-E agency to collect information about whether the child has an Individualized Education Program (IEP) or an Individualized Family Service Program (IFSP) as of the end of the report period. An IEP is a written statement for each child with a qualifying disability that requires special education services for that disability. The IEP is developed, reviewed and revised by the school in accordance with requirements in section 614(d)(1) of Title I, Part B of the Individuals with Disabilities Education Act (IDEA) and implementing regulations. An IFSP is a written individualized family service program for a child ages 0-3 with special needs. An IFSP must be developed by a multidisciplinary team, including the parent(s) and early intervention specialist(s), and meet requirements of section 636 of Title I, Part C of the IDEA and implementing regulations.

If the child does not have an IEP or IFSP, the title IV-E agency must indicate “not applicable.” We believe that a current IEP or IFSP indicates that a child has need for or is currently receiving special education instruction or early intervention services, respectively. Agencies are not required to report this information in the current AFCARS. This proposal modifies the “special education” data element proposed in the 2008 NPRM, in which we proposed to require title IV-E agencies to indicate whether the child received special education instruction during the report period. The term “special education” is defined in 20 U.S.C. 1401(29) and means specifically designed instruction, at no cost to the parent(s), to meet the unique needs of a child with a disability.

Several commenters to both the 2008 NPRM and the 2010 FR Notice suggested collecting information specifically on whether a child has a current IEP or IFSP, rather than general receipt of special education. Other commenters to the 2008 NPRM indicated that there were significant potential data quality issues with reporting on the child's receipt of special education, as this information would require constant updating by caseworkers in title IV-E agencies. Commenters to the 2008 NPRM also were concerned that the needs of and services received by young children in foster care (ages 0-3) were excluded from the 2008 NPRM proposal. Our current proposal is responsive to some of these comments. Further, we propose collecting information on a child's IEP or IFSP as a proxy for receipt of special education because we believe that data on whether the child has an IEP or IFSP is a more reliable measure of determining if a child is receiving special education services. In addition, we believe that information regarding an IEP or IFSP is information often included in a child's case file and is thus easier for a title IV-E agency to obtain than information regarding eligibility for special education instruction.

As outlined in the 2008 NPRM, we propose to collect information on a child's receipt of special education because of our interest in monitoring the well-being of children in out-of-home care and our desire to provide a more comprehensive picture of the educational needs of children in out-of-home care. Further, gathering this information is consistent with the case plan requirements in section 475(1)(C) of the Act. We welcome comments on this proposal.

IDEA qualifying disability.

In paragraph (b)(12), we propose for the first time to require title IV-E agencies to report the child's qualifying disability, if applicable, (

i.e.,

categories of impairment indicated on the child's IEP or IFSP) if the title IV-E agency indicated that the child has either an IEP or IFSP in paragraph (b)(11); otherwise the title IV-E agency should leave this data element blank. The child has a “qualifying disability” if the child meets at least one category of impairment (as defined in the IDEA at 34 CFR 300.8(c)), and the child may need early intervention, special education and/or related services in order for the child to benefit from an educational program. The categories of impairment defined in IDEA (including developmental delay, autism, hearing or visual impairment, emotional disturbance, intellectual disability and traumatic brain injury) are included on the child's IEP or IFSP as part of the eligibility determination for special education services. The response options we propose are the same as the categories of impairment defined at 34 CFR 300.8(c).

The information we propose to be collected in this paragraph differs from the information collected in “health, behavioral or mental health conditions” as described in paragraph (b)(7). In paragraph (b)(12), we propose to require the title IV-E agency to indicate which categories of impairment serve as the basis for the child's qualification for early intervention services or special education instruction, which is information taken directly from the child's IEP or IFSP. The response options described in paragraphs (b)(12)(i) through (b)(12)(xii) are unique in that they are federally-defined under IDEA and may not always match the clinical definition(s) of a disability. Further, IDEA does not require conditions present on an IEP or IFSP to be diagnosed by a qualified professional; conditions may be determined through an assessment or other mechanism by various school personnel. In contrast, paragraph (b)(7) describes health, behavioral and mental health conditions that are aligned with clinical definitions and instructs title IV-E agencies to indicate only those conditions that have been diagnosed by a qualified professional (as defined by the title IV-E agency) for the purposes of AFCARS data collection.

We believe that collecting information pertaining to the needs of children receiving special education services is important to understanding the educational performance of children in out-of-home-care. Our proposal to collect information in paragraph (b)(12) on the categories of impairment defined in IDEA also is consistent with the suggestions of several public commenters to the 2008 NPRM who

believed that the previously proposed “special education” data element did not provide enough information on the child's need for special education, particularly on children who are receiving special education services but do not have a clinical disability diagnosed by a qualified professional indicated in paragraph (b)(7) (

e.g.,

children with Attention Deficit Disorder or other behavioral conditions). Further, requiring this information is consistent with the case plan requirements in section 475(1)(c) of the Act. We welcome comments on this proposal.

Prior adoption.

In paragraph (b)(13), we propose to require a title IV-E agency to report whether the child has experienced one or more prior legal adoption(s), and the dates, types, and jurisdiction of each adoption. In the existing AFCARS, we require title IV-E agencies to indicate if the child was ever adopted and, if so, the child's age at the time of the adoption finalization. In the 2008 NPRM, we proposed to revise the requirement to clarify that we are interested in whether the child has ever experienced a finalized adoption prior to the current out-of-home care episode, and proposed to require the title IV-E agency to collect the date, type, and location of the prior adoption, if one is so indicated. Our current proposal mirrors the 2008 NPRM proposal to require the title IV-E agency to collect information on whether a child had or had not experienced a prior adoption or report if information is unknown because the child has been abandoned. However, for the first time, we propose that title IV-E agencies submit adoption date, type, and jurisdiction information for each prior adoption that the child had experienced, providing an opportunity for data collection if the child has experienced one or more adoption(s) prior to entry into foster care.

As in the 2008 NPRM, we also clarify that the title IV-E agency is to include any type of prior adoption in this data element, regardless of whether the adoption was public, private or independent, or out of the United States. Although some commenters to the 2008 NPRM had concerns about the increased burden on caseworkers to collect this information, many commenters to both the 2008 NPRM and 2010 FR Notice supported the collection of this information, indicating that it provided greater detail on the stability of adoptions from foster care.

Prior adoption date(s).

In paragraph (b)(13)(i), we propose to require a title IV-E agency to report the finalization date of each prior adoption(s) that the child has experienced if it was indicated in paragraph (b)(13) that the child had at least one prior finalized adoption. This is a modification of the data element proposed in the 2008 NPRM, which did not provide the opportunity to report multiple adoption finalization date(s).

In the existing AFCARS, we require the title IV-E agency to report the child's age range at the time of the prior finalized adoption. This information, however, was insufficient to determine accurately when the child was previously adopted. Thus, as in the 2008 NPRM, we propose that the title IV-E agency report the actual finalization date to allow us to determine how much time has elapsed between the child's previous adoption(s) and his or her current out-of-home care episode. We did not receive comments on this proposal in the 2008 NPRM.

In the case of an intercountry adoption, the child's parent(s) may have gone through a readoption process in the jurisdiction where they reside in the United States. While in many cases this process is optional for a child whose adoption was finalized in the originating country, we understand that there are some jurisdictions in the United States that require the child to be readopted in his or her jurisdiction of residence. In such cases, we are requiring that the title IV-E agency provide the date that the adoption is considered final in accordance with applicable State or Tribal laws.

Prior adoption type(s).

In paragraph (b)(13)(ii), we seek information on the type of each prior adoption the child has experienced, as indicated in (b)(13)(i). We propose to require a title IV-E agency to indicate “foster care adoption within State or Tribal service area” if the child was in foster care in the reporting State or Tribal service area at the time the prior adoption was legalized. We propose to require a title IV-E agency to indicate “foster care adoption in another State or Tribal service area” if the child was in foster care in another State or Tribal service area at the time the prior adoption was legalized. We propose to require a title IV-E agency to indicate “intercountry adoption” if the child had a prior adoption that occurred in another country, or was finalized in the United States after the child was brought into the country for the purposes of the prior adoption. Finally, we propose to require a title IV-E agency to indicate “other private or independent adoption” if the child's prior adoption was neither a foster care adoption nor an intercountry adoption as defined above. This proposal to require the title IV-E agency to report each prior adoption type is necessary to accommodate our overall proposal to require title IV-E agencies to report multiple adoption type(s) if a child experienced more than one prior adoption.

For the purposes of AFCARS, “another country” in the definition of “intercountry adoption” means any country other than the United States. As described in the 2008 NPRM, we seek this information primarily in response to the requirements in section 422(b)(12) of the Act, which require the CFSP and Annual Progress and Services Report (APSR) to collect and report certain information on children who are adopted from other countries and who enter the custody of a title IV-E agency as a result of the disruption of an adoption placement or the dissolution of that adoption.

We seek this information to allow us to compile the number of children and jurisdiction(s) from where such children originated to inform permanency planning for children involved in disrupted or dissolved adoptions. We believe that collecting this information in AFCARS will provide more nuanced information on disrupted or dissolved adoptions because we will be able to collect information at the case level, rather than in aggregate per the current CFSP/APSR reporting method. Several commenters to the 2008 NPRM indicated concern regarding the time and burden for caseworkers involved in collecting data on prior adoptions, particularly for prior interstate and intercountry adoptions. However, we believe this information is collected as part of the case assessment of the child and family and that including this data element will provide critical information on international adoptees moving into foster care. Additionally, it will contribute to our knowledge surrounding disrupted or dissolved adoptions.

Prior adoption jurisdiction(s).

In paragraph (b)(13)(iii), we propose to require a title IV-E agency to submit the name of the State, Tribal service area, Indian reservation, or country in which the child was previously adopted. A title IV-E agency must collect this information only for each prior adoption noted in paragraph (b)(13)(ii) that occurred outside of the reporting State or Tribal service area; otherwise the title IV-E agency must leave this data element blank. This data element is not in the current AFCARS and was first proposed in the 2008 NPRM. The current proposal differs from the 2008 NPRM, which required title IV-E agencies to submit the FIPS code that corresponded with the State or country

in which the child was previously adopted. We modified this data element to remove FIPS codes, which are no longer being maintained and updated. In addition, FIPS codes do not account for the breadth of jurisdictions that could be captured in this element, as they do not include non-Federal Tribes and other countries. ACF will work with Tribal title IV-E agencies to develop valid response options for this element.

We propose to collect the jurisdiction of each prior adoption so that we can calculate accurately the dissolution and disruption rates for each jurisdiction in which the child experienced a finalized adoption. Further, collecting information on the country in the case of a prior intercountry adoption will inform our understanding of disrupted or dissolved intercountry adoptions consistent with the requirements in section 422(b)(12) of the Act.

Prior guardianship.

In paragraph (b)(14), we propose, for the first time, to require title IV-E agencies to collect and report information on whether or not the child experienced one or more prior legal guardianship(s). For the purposes of AFCARS, the definition of legal guardian is consistent with that provided in section 475(7) of the Act and means “a judicially created relationship between child and caretaker 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.” If the child experienced a prior legal guardianship, we propose to require the title IV-E agency to submit the legal guardianship date and type in paragraphs (i) and (ii) for each prior guardianship indicated in this paragraph and jurisdiction information in paragraph (iii) for each prior guardianship indicated in paragraph (b)(14)(ii) that occurred outside of the reporting State or Tribal service area; otherwise the title IV-E agency must leave those paragraphs blank. We propose to require the title IV-E agency to collect information on whether a child had or had not experienced a prior guardianship or if information is unknown because the child has been abandoned. We also are clarifying that the title IV-E agency is to report any type of prior legal guardianship in this element, regardless of whether the guardianship was public, private or independent.

We propose to collect this information because, similar to our proposal to collect information on prior adoption(s), it is important to determine the number of children who have experienced one or more disrupted legal guardianship(s) before entering out-of-home care in order to better understand the potential impact of prior guardianships on permanency planning for these children. Further, because Public Law 110-351 established the option for title IV-E agencies to establish Guardianship Assistance Programs in section 473(d) of the Act, it is important to collect parallel information on both legal

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