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:

Final rule.

SUMMARY:

The Social Security Act (the Act) requires that ACF regulate a national data collection system that provides comprehensive demographic and case-specific information on children who are in foster care and adopted. This final rule replaces existing Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations and the appendices to require title IV-E agencies to collect and report data to ACF on children in out-of-home care, and who exit out-of-home care to adoption or legal guardianship, children in out-of-home care who are covered by the Indian Child Welfare Act, and children who are covered by a title IV-E adoption or guardianship assistance agreement.

DATES:

This rule is effective on January 13, 2017 except for the removal of § 1355.40 (amendatory instruction 3) and Appendices A through E to Part 1355 (amendatory instruction 5), which are effective as of October 1, 2019.

FOR FURTHER INFORMATION CONTACT:

Kathleen McHugh, Director, Policy Division, Children's Bureau, 330 C Street, SW., Washington, DC 20201. Email address:

cbcomments@acf.hhs.gov.

Deaf and hearing impaired individuals may call the Federal Dual Party Relay Service at 1-800-877-8339 between 8:00 a.m. and 7:00 p.m. Eastern Time.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary per Executive Order 13563

II. Background on AFCARS

III. Regulation Development

IV. Discussion of Major Changes to the Final Rule

V. Implementation Timeframe

VI. Section-by-Section Discussion of Comments and Regulatory Provisions

VII. Regulatory Impact Analysis

VIII. 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 final rule.

(1) Purpose of the AFCARS Final Rule

(a)

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

This rule finalizes AFCARS revisions proposed in a Notice of Proposed Rulemaking on February 9, 2015 (80 FR 7132, hereafter referred to as the 2015 NPRM) and in a Supplemental Notice of Proposed Rulemaking on April 7, 2016 (81 FR 20283, hereafter referred to as the 2016 SNPRM). We revised the AFCARS regulations to: (1) Incorporate statutory requirements enacted since 1993; (2) implement the statutory mandate to assess penalties for noncompliant data submissions; (3) enhance the type and quality of information title IV-E agencies report to ACF; and (4) incorporate data elements related to the Indian Child Welfare Act (ICWA). Title IV-E agencies must submit data files on a semi-annual basis to ACF. The regulations specify the reporting population, standards for compliance, and all data elements. The final rule will improve the data reported to ACF by including more comprehensive national data on the status of American Indian/Alaska Native (AI/AN) children for whom ICWA applies and historical data on children in foster care and adds new data elements to better understand a child's experience in out-of-home care.

(b)

Legal authority for the final rule:

Section 479 of the Act mandates HHS regulate a data collection system for national adoption and foster care data. Section 474(f) of the Act requires HHS to impose penalties for non-compliant AFCARS data. Section 1102 of the Act instructs the Secretary to promulgate regulations necessary for the effective administration of the functions for which HHS is responsible under the Act.

(2) Summary of the Major Provisions of the Final Rule

(a)

Reporting Populations.

AFCARS will have two reporting populations: the out-of-home care reporting population and the adoption and guardianship assistance reporting population. The out-of-home care reporting population includes a child of any age who is in foster care under the placement and care responsibility of the title IV-E agency; is receiving title IV-E foster care maintenance payments under a title IV-E agreement; or 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 the reporting population, he or she remains in the reporting population until the title IV-E agency's responsibility for the child ends or the child's title IV-E foster care maintenance payment pursuant to a title IV-E agreement ends. The adoption and guardianship assistance reporting population includes a child whose adoption or guardianship was finalized during the report period, and the child's adoptive parents or guardians have a title IV-E adoption or guardianship assistance agreement with the reporting title IV-E agency.

(b)

Data Structure.

Title IV-E agencies must report AFCARS information in two separate data files: an out-of-home care data file and an adoption and guardianship assistance data file. The out-of-home care data file is a combination of point-in-time information (

e.g.,

demographics) and information on the events in the child's life over time (

e.g.,

every living arrangement and permanency plan). The adoption and guardianship assistance data file contains data that capture a child's demographic information, payment information, and certain agreement information.

(c)

Data Elements.

We retained the majority of data elements proposed for the out-of-home care reporting population proposed in the 2015 NPRM, but removed some data elements in response to comments (

e.g.,

concurrent permanency plans) and modified others (

e.g.,

caseworker visits and prior adoption/guardianship). We reduced the adoption and guardianship assistance reporting to include data on the child's demographics, subsidy amounts, adoption finalization date, and agreement termination date. Also, we retained nearly all of the data elements proposed in the 2016 SNPRM for the out-of-home care reporting population specific to Indian children as defined in ICWA, but removed two data elements: one data element requiring states to report if they provided additional information requested by tribes related to notification and one data element indicating the date when the state title IV-E agency began making active efforts.

(d)

Compliance and Penalties.

The final rule strengthens 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. 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 the corrected data. If a title IV-E agency does not meet the standards after corrective action, ACF will apply the penalties required in statute (section 474(f) of the Act).

(3)

Costs and Benefits.

We estimate that costs for the final rule will be approximately $40.7 million. Benefits are that we will have an updated AFCARS regulation for the first time since 1993. In addition to the current uses of the data, the new information will provide more comprehensive information to deepen our understanding of guardianships and to address the unique needs of Indian children as defined in ICWA who are in the state's placement and care responsibility and who exit to reunification, adoption or who are transferred to the custody of the Indian tribe. This will further our work to draw national statistics and trends about the foster care, adoption, and guardianship populations for assessing the current state of these federal programs and inform national policies with respect to adoption, guardianship, and foster care.

II. Background on AFCARS

AFCARS regulations were originally published in December 1993 in response to the statutory mandate for adoption and foster care data in section 479 of the Act. That mandate is for 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.

We use AFCARS data to:

• Draw national statistics and trends about the foster care and adoption populations for assessing the current state of foster care and adoption.

• Complete the annual Child Welfare Outcomes Report to Congress (section 479A of the Act).

• Develop our budgets.

• Calculate payments for the Adoption and Guardianship Incentive Payments program.

• Monitor title IV-E agency compliance with title IV-B and IV-E requirements, including drawing the population sample for title IV-E reviews.

• Develop appropriate national policies with respect to adoption and foster care; and

• Address the unique needs of Indian children as defined by ICWA in foster care or who exit to adoption, and their families.

III. Regulation Development

Proposed Rules:

We published a NPRM on January 11, 2008 to revise AFCARS (73 FR 2082). We did not finalize that NPRM due to the President signing into law the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Public Law 110-351) that substantially changed the title IV-E program. Rather, we analyzed the comments and sought additional comments through a

Federal Register

Notice (75 FR 43187, issued July 23, 2010). In September 2014, the President signed into law the Preventing Sex Trafficking and Strengthening Families Act (Public Law 113-183) that modified the AFCARS requirements in section 479 of the Act, the annual Child Welfare Outcomes Report in section 479A of the Act, and added a requirement for HHS to submit several reports to Congress requiring the collection and reporting of 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. We published the 2015 NPRM proposing to modify the requirements for title IV-E agencies to collect and report data to ACF on children in out-of-home care and who were adopted or in a legal guardianship with a title IV-E adoption or guardianship assistance agreement. In April 2015, we announced our intent to publish a supplemental NPRM that would propose adding ICWA-related data elements to AFCARS (80 FR 17713, issued April 2, 2015). ICWA establishes minimum federal standards for the removal of Indian children from their families and the placement of such children in foster care or adoptive placements that reflect the unique values of Indian culture. In cooperation with the Children's Bureau, the National Association of Public Child Welfare Administrators (NAPCWA), an affiliate of the American Public Human Services Association (APHSA) hosted a conference call with state members of NAPCWA (

i.e.,

representatives of state child welfare agencies) on April 27, 2015. The purpose of the call was to obtain input from state members on what data state title IV-E agencies currently collect regarding ICWA and what they believed were the most important information title IV-E agencies should report in AFCARS related to ICWA. In addition, the Children's Bureau held a tribal consultation via conference call on May 1, 2015 to obtain input from tribal leaders on proposed AFCARS data elements related to ICWA. Comments were solicited during the call to determine essential data elements that title IV-E agencies should report to AFCARS. As part of on-going intra- and inter-agency collaboration, ACF consulted with federal experts on whether data exists, or not, and its utility in understanding the well-being of Indian children, youth, and families. ACF also consulted with federal partners at the Department of Justice (DOJ) and the Bureau of Indian Affairs (BIA) at the Department of the Interior on the ICWA statutory requirements in 25 U.S.C 1901

et seq.,

the Department of Interior, Bureau of Indian Affairs Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (80 FR 10146 issued February 25, 2015, hereafter referred to as BIA's Guidelines), and Notice of Proposed Rulemaking to Implement Regulations for State Courts and Agencies in Indian Child Custody Proceedings (80 FR 14880, issued March 20, 2015). After considering all of the aforementioned input, the 2016 SNPRM was published on April 7, 2016 (81 FR 20283) and proposed to require that state title IV-E agencies collect and report certain information related to ICWA for Indian children in the AFCARS out-of-home care reporting population.

2015 NPRM Comments:

In response to the 2015 NPRM, we received 126 comment letters from states, Indian tribes and organizations representing tribal interests, national advocacy/public interests groups, universities, and private citizens. Many commenters supported many of the revisions we proposed for reporting historical data and collecting new information on topics such as caseworker visits, transition plans, and siblings. Commenters suggested including data elements related to ICWA. However, some commenters expressed concern

with the burden of modifying state systems to report the additional data elements. Suggestions included that we pare down the overall number of data elements to a core set that collects essential information. Commenters suggested that some of the proposed data elements were better suited in case narratives or case reviews rather than AFCARS. We expand on these comments in the section-by-section discussion.

2016 SNPRM Comments:

In response to the 2016 SNPRM, we received 91 comment letters from states, Indian tribes and organizations representing tribal interests, national child welfare advocacy/public interest groups, universities, and private citizens. Many commenters supported collecting ICWA-related data in AFCARS and stated that it will better inform practice for Indian children as defined in ICWA. However, many commenters also expressed concerns with the burden of modifying state data systems to collect and report new and additional data elements. They suggested that we pare down the overall number of data elements to a core set that collects essential information related to ICWA. Commenters stated that much of the proposed data elements were better suited for case reviews rather than AFCARS because much of the information is currently in case narratives. We expand on these comments in the section-by-section discussion.

IV. Discussion of Major Changes to the Final Rule

Discussed below are the major changes and provisions of the final rule.

A. Changes to the Out-of-Home Care Data File

We received many comments in response to the AFCARS out-of-home care data elements proposed in the 2015 NPRM and 2016 SNPRM that helped us strengthen, clarify, and streamline the data elements. In general, states and the national organization that represents state child welfare agencies believe there are data elements in both the 2015 NPRM and the 2016 SNPRM that exceed the scope of the requirements of recent child welfare legislation and they recommend that ACF review each proposed data element and focus on essential data elements that can be reasonably collected and compared across states. Some states expressed concerns about the proposed data elements, implementation period, penalties, timeframe for submission, limited access to court records, and associated burden. They suggested paring down the number of data elements, providing adequate timeline and structure to implement changes including data exchanges with courts, and requested additional resources to meet the burden of implementation and training staff. In addition, some states expressed concerns that the rule includes data elements that attempt to capture qualitative and quantitative information that is not easily reducible to a single data field, and are more appropriate for a qualitative case review rather than an administrative data collection. We made the following major changes in the out-of-home care data file based on public comments:

Citizenship and Immigration

Throughout the final rule, we removed proposed data elements that required agencies to report whether or not the child or parent was born in the United States. State title IV-E agencies and a national organization representing state child welfare agencies were overwhelmingly opposed to agencies being required to report this in AFCARS, commenting that the data elements are not relevant to their work at the state and local level and could adversely impact the worker's relationship with families. However, in response to suggestions to add data elements related to parental immigration detainment or deportation, we included these as response options in the

Child and family circumstances at removal

data element in section 1355.43(d). These changes are explained in further detail in the section-by-section discussion.

Sexual Orientation

We requested public input in the 2015 NPRM on whether AFCARS should include information on whether a child identifies as lesbian, gay, bisexual, transgender, or questioning (LGBTQ). We received comments both in favor and against title IV-E agencies collecting and reporting this information to AFCARS but we were convinced to include data elements in the final rule related to the sexual orientation of the child (section 1355.44(b)), the child's foster parent(s) (section 1355.44(e)), and adoptive parent(s) or legal guardian(s) (sections 1355.44(h)). Our goal in including this information is that the data will assist title IV-E agencies to help meet the needs of LGBTQ youth in foster care.

Information on sexual orientation should be obtained and maintained in a manner that reflects respectful treatment, sensitivity, and confidentiality. Several state and county agencies, advocacy organizations and human rights organizations have developed guidance and recommended practices for how to promote these conditions in serving LGBT youth in adoption, foster care and out-of-home placement settings. ACF provides state and tribal resources for Working With LGBTQ Youth and Families at the Child Welfare Information Gateway. The following links are provided as general examples of such guidance (Minnesota and California examples). ACF will provide technical assistance to agencies on collecting this information.

We also added, based on comments, whether there is family conflict related to the child's sexual orientation, gender identify, or gender expression as a

Child and family circumstance at removal

reported when a child is removed from home in section 1355.44(d).

Child Financial and Medical Assistance

We proposed in the 2015 NPRM to collect financial and medical assistance information that support the child in two separate data elements: (1) Identify the source of federal assistance and total per diem payment amount for each of the child's living arrangements from a list seven types of assistance; and (2) identify whether the child received specific non-title IV-E federal or state/tribal financial and medical assistance during the report period. We received many comments expressing concern about the increased burden in particular to report specific federal assistance per diem payment amounts for every living arrangement. In response to these concerns, we were persuaded to revise the data elements by removing the data element related to per diem payment amounts for every living arrangement and consolidated the response options from both data elements into one data element. As a result, in section 1355.44(b) of the final rule, we require title IV-E agencies to report if the child received any of 13 types of state/tribal and federal financial and medical assistance during the report period.

Health, Behavioral or Mental Health Conditions and IDEA Qualifying Disability

We proposed in the 2015 NPRM to require agencies to report on a child's health, behavior or mental health conditions in one data element and the child's qualifying disability as defined by the Individuals with Disabilities Education Act (IDEA) if he/she has an Individualized Education Program (IEP) or Individual Family Service Plan (IFSP) in another. We received many comments from state title IV-E agencies that the response options for both data elements were very similar conditions,

the distinction confusing, and could lead to unreliable data. We were persuaded by the commenters to streamline and consolidate the two data elements and as a result removed the specific requirement for agencies to report a child's qualifying disability, and modified and combined the response options into one data element called health, behavioral or mental health conditions with 11 conditions for agency to report on the child (section 1355.43(b)). This will provide us with better data on the child's health characteristics and meets the federal requirement to collect this information per section 479A(a)(7)(A)(v) of the Act regarding reporting clinically diagnosed conditions for certain children in foster care.

Siblings

We revised how we will collect information on siblings in the out-of-home care data file in the final rule. In the 2015 NPRM, we proposed to collect sibling information in both the out-of-home care data file and the title IV-E adoption and guardianship assistance data file:

• The number of siblings of the child who are in out-of-home care and the child record numbers for those siblings, those siblings who are placed together in out-of-home care and those not placed together; and

• the number of siblings who exited out-of-home care to adoption or guardianship and the child record numbers of those siblings who are living with the child and the child record numbers of those not living with the child.

Commenters generally agreed that information about siblings is important to collect, but had concerns that our proposal was too complicated and would not yield reliable information because there are many and varied reasons for siblings not being placed together. Commenters thought the proposal did not take into account the complexity of what may constitute a family in the eyes of a child, and this information is best captured qualitatively. We carefully reviewed the comments and recommendations. While we understand the concerns and issues the commenters raised that may make it difficult to report sibling information, we determined that we must continue to require agencies to report information about sibling placements. As we noted in the preamble to the 2015 NPRM, section 471(a)(31)(A) of the Act requires title IV-E agencies to make reasonable efforts to place siblings removed from their home in the same foster care, kinship guardianship or adoptive placement, unless such a placement is contrary to the safety or well-being of any of the siblings. While we retained the core requirement for agencies to report on whether siblings are placed together in foster care and when siblings exit to adoption, we simplified reporting. We removed the data elements requiring the agency to report the sibling's child record numbers which was one of the concerns raised by commenters. Thus, the agency reports in the out-of-home care data file the following:

• The number of siblings of the child that are in foster care, and the number of siblings in the same living arrangement as the child on the last day of the report period (section 1355.42(b)).

• The number of siblings of the child who are in the same adoptive or guardianship home as the child, if the child exited foster care to adoption or guardianship (section 1355.44(h)).

Data Elements Related to ICWA

2016 SNPRM Rationale:

The Government Accountability Office (GAO) reported in 2005 that there is no national data on children subject to ICWA by which to assess the experiences of AI/AN children in child welfare systems or with which to target guidance and assistance to states (GAO-05-290 Indian Child Welfare Act). Further, in response to comments on the 2015 NPRM and a reevaluation of our data collection authority, we were persuaded to propose that state title IV-E agencies report ICWA-related data. We proposed the data elements in the 2016 SNPRM as paragraph (i) to the proposed section 1355.43 (from the 2015 NPRM) after considering input from comments and federal agency experts. Overall, tribes, organizations, states, and private citizens supported our mission to collect additional information related to Indian children as defined in ICWA. Moreover, some states, tribes, national organizations and federal agencies have stated that ICWA is the “gold standard” of child welfare practice and its implementation and associated data collection will likely help to inform efforts to improve outcomes for all children and families in state child welfare systems.

Comments: Generally, tribes, organizations representing tribal interests, national child welfare advocacy organizations, and private citizens fully support the overall goal and purpose of including ICWA-related data in AFCARS, and the data elements as proposed in the 2016 SNPRM. These commenters believe that collecting ICWA-related data in AFCARS will:

1. provide data on core ICWA requirements such as “active efforts” and placement preferences, as well as assess how the child welfare system is working for Indian children as defined by ICWA, families and communities;

2. facilitate access to culturally-appropriate services to extended families and other tribal members who can serve as resources and high quality placements for tribal children;

3. help address and reduce the disproportionality of AI/AN children in foster care; and

4. provide avenues for collaboration between states and tribes that are more meaningful and outcome driven, including improved policy development, technical assistance, training and resource allocation as a result of having reliable data available.

Overall, tribal commenters and national child welfare advocacy organizations believe that collecting ICWA-related data in AFCARS is a step in the right direction to ensure that Indian families will be kept together when possible, and will help prevent AI/AN children from entering the foster care system. Many of the tribal commenters that supported the 2016 SNPRM also recommended extensive training for title IV-E agencies and court personnel in order to ensure accurate and reliable data reporting. Some commenters recommended additional data elements.

Commenters from some states and the national organization representing state child welfare agencies generally supported the overall goal and purpose of including ICWA-related data in AFCARS. One state commented that reporting national data related to ICWA was needed and long over-due. Some states reiterated concerns expressed in their comments to the NPRM related to the implementation period, penalties, timeline for submission, limited access to court records and the associated burden. Those states made similar recommendations to reduce the number of elements, provide an adequate implementation timeline, and requested additional resources to implement and train staff. As with their comments to the NPRM, some states identified proposed ICWA-related data elements that they believe would not be easily captured in a single data field and may therefore be better assessed through qualitative case file review. Some states also suggested that we clarify the language of the ICWA-related data elements and definitions in relation to BIA's regulations in order to increase national uniformity of practice and data collection. Several states said that they have a small number of AI/AN children

in their AFCARS reporting population and they requested that federal funding be made available to the fullest extent possible to help prepare for the low-occurring event of reporting the ICWA-related information.

Final Rule:

We understand the burden issues that states raised in collecting and reporting additional data to AFCARS; however, we have determined in the final rule that the benefits outweigh the burden associated with collecting and reporting the additional data. Most states commented positively about improving data on Indian children as defined in ICWA. As we stated in the 2016 SNPRM, it is unclear how well state title IV-E agencies implement ICWA's requirements because of the lack of data related to ICWA. Even in states with large AI/AN populations, there may be confusion regarding how and when to apply ICWA.

We retained most of the data elements proposed in the 2016 SNPRM with some minor revisions to be consistent with the final rule published by the Department of the Interior, Bureau of Indian Affairs that addresses requirements for state courts regarding ICWA (81 FR 38778). We modified our final AFCARS rule requiring state title IV-E agencies to report whether active efforts were made prior to removal and prior to a termination of parental rights (TPR), and to identify which active efforts were made prior to removal and during the child's out-of-home care episode. We agree with commenters' suggestions that we include information when a state title IV-E agency inquired of extended family if the child is an Indian child because extended family may have information that parents do not know. We removed the requirement for states to report the date on which the state title IV-E agency began making active efforts in order to coordinate with the BIA's regulation clarifying that ICWA applies when the state title IV-E agency knows or has reason to know that a child is an Indian child as defined in ICWA. We removed the data element requiring states to report whether the state provided additional information the tribe requested related to notification. We explain this more in the section-by-section discussion.

We determined the best approach for the final rule is to integrate the data elements proposed in the 2016 SNPRM as section 1355.43(i) into applicable sections of this final rule at section 1355.44. These sections are: Child information (section 1355.44(b)); Parent or legal guardian information (section 1355.44(c)); Removal information (section 1355.44(d)); Living arrangement and provider information (section 1355.44(e)); Permanency planning (section 1355.44(f)); General exit information (section 1355.44(g)); and Exit to adoption and guardianship information (section 1355.44(h)).

On June 14, 2016, BIA published the final rule, Indian Child Welfare Act Proceedings (81 FR 38778). BIA's final rule requires fewer court orders than its proposed rule and increases flexibility for recording court decisions. In response to state and tribal comments suggesting congruence with the BIA's final rule, we revised data elements in this final rule as appropriate to reflect the BIA's regulations including removing requirements that state title IV-E agencies report certain information only from ICWA-specific court orders. These changes should allow the state title IV-E agency more flexibility, alleviate some of the burden and other concerns identified by states, help target technical assistance to increase state title IV-E agency communication and coordination with courts, and improve practice and national data on all children who are in foster care.

B. Revisions to Data on Children Who Are Adopted and Children Who Are Placed in Legal Guardianships

2015 NPRM Proposal and Rationale:

In the 2015 NPRM, we proposed a new data file to collect information on children who have title IV-E adoption or guardianship assistance agreements and several new out-of-home care data elements to collect information on children who exit out-of-home care to adoption or legal guardianship.

Title IV-E Adoption and Guardianship Assistance data file:

We proposed in the 2015 NPRM to require the title IV-E agency to report ongoing information on children under a title IV-E adoption and guardianship assistance agreement (called the title IV-E adoption and guardianship assistance data file), regardless of whether the agreement is for an ongoing subsidy, nonrecurring costs or in the case of a title IV-E finalized adoption, a Medicaid-only subsidy. The information included: demographics on each child, finalization/legalization dates, jurisdiction of the adoption, adoption or guardianship placing agency, subsidy and nonrecurring costs amounts, and sibling information.

Section 1355.44(h) Exit to adoption and guardianship information:

We also proposed data elements in the out-of-home care data file related to all children who exit out-of-home care to adoption or legal guardianship. This included children who have a title IV-E adoption or guardianship assistance agreement, with or without a subsidy, and those who do not have either an agreement or subsidy. We proposed to require that the title IV-E agency report information on children who exit out-of-home care to adoption or legal guardianship, including: Demographic information (race, ethnicity, date of birth) on the adoptive parents/legal guardians; child's relationship to the adoptive parents/legal guardians; whether the child was placed within or outside of the state or tribal service area, or into another country for adoption or legal guardianship, and if so the name of the jurisdiction; and the agency that placed the child.

Comments:

We received public comments on the overall proposal to collect information on children under title IV-E adoption and guardianship agreements, comments on individual data elements, and suggestions for expanding the information to be reported. A national organization representing state child welfare agencies requested that we remove the title IV-E adoption and guardianship assistance data file from the final rule and in general recommended that all AFCARS data elements be clearly defined and structured to provide accurate, reliable, and valid information. Additional comments and concerns raised by the organization were that: some state laws and/or policies regarding the oversight allowed with an adoptive family restricts the ongoing collection and use of information about these children; children under guardianship and adoption assistance agreements do not have open service cases even when there is a subsidy; many states capture the financial information regarding title IV-E adoption and guardianship subsidies in other systems; and many states would be required to make a significant changes to their application and report programs. In addition, the organization specifically noted that requiring agencies to report on an optional program for a child under a title IV-E guardianship assistance agreement reaches beyond our statutory authority. Several others, including states, agreed with the recommendation to remove the title IV-E adoption and guardianship assistance data file, raising additional concerns about the burden on workers. Some national advocacy/public interest groups representing children and adoption agency interests supported the collection of information on children under title IV-E assistance agreements. Some of these groups suggested including data elements on children with state guardianship agreements and additional historical

data elements. We also received specific comments on the data elements in section 1355.44(h) that we address in the section-by section discussion of the preamble related to gender of the adoptive parents and legal guardians, sexual orientation of the adoptive parents and legal guardians, the definition of kin, and information on siblings.

We carefully reviewed all of the comments and reconsidered our essential needs at the federal level for data on children who are adopted and in legal guardianships, and revised the final rule as described below.

Final Rule: Adoption Assistance data file:

We retained the adoption and guardianship assistance reporting population as proposed, given the growing dominance of this population as a component of the title IV-E beneficiary population. However, we reduced the data elements to those that are essential for our needs in understanding this population of children who are receiving Federal benefits: a child's basic demographic information, subsidy amounts, and adoption and guardianship finalization and subsidy termination dates. As specified in the NPRM, this information will be used to discern changing circumstances and fluctuations in title IV-E payment amounts, responding to questions raised by Congress, and for budgetary planning and projection purposes. We removed the requirements for agencies to report non-recurring costs amounts as we do not have a specified need for this case level information and agencies report this type of information in the aggregate. We reduced reporting on siblings which is only reported in the out-of-home care file, as is the adoption jurisdiction and adoption reporting agency.

Final Rule: Section 1355.44(h) Exit to adoption and guardianship information:

We determined that it was essential for us to have more robust information about all children who exit state or tribal foster care to adoption or legal guardianship, which is found in the out-of-home care data file at section 1355.44(h). We added and revised data elements based on commenters' suggestions to ensure we have a comprehensive set of information about children who exit foster care to adoption and guardianship. The most notable data elements we added to the out-of-home care data file for children who exit to adoption or guardianship are:

• Sexual orientation of the adoptive parent(s) or legal guardian(s);

• Tribal membership of the adoptive parent(s) or legal guardian(s);

• The assistance agreement type (adoption assistance agreement, state/tribal adoption assistance agreement, adoption-title IV-E agreement, non-recurring expenses only; Medicaid only; title IV-E guardianship assistance agreement, state/tribal guardianship assistance agreement, or no agreement); and

• The number of siblings of the child who are in the same adoptive or guardianship home as the child who exited out-of-home care to adoption or guardianship.

C. Report Periods and Deadlines

In section 1355.43(a)

Report periods and deadlines,

we modified the final rule to allow title IV-E agencies up to 45 days after the end of the report period to transmit the AFCARS data files.

V. Implementation Timeframe

We are providing two fiscal years for title IV-E agencies to comply with sections 1355.41 through 1355.47. State and tribal title IV-E agencies must continue to report data related to children in foster care and who have been adopted with title IV-E agency involvement to ACF in accordance with section 1355.40 and the appendix to part 1355 during the implementation period. It is essential for agencies to continue to report AFCARS data to ACF without interruption because AFCARS data is used for various reports, planning and monitoring, and to make the Adoption and Guardianship Incentive awards.

We received comments from many states on the implementation timeframe and several offered suggestions. State commenters to both the 2015 NPRM and the 2016 SNPRM indicated they would need sufficient time to make changes to their electronic case management systems to collect new information. Several state title IV-E agencies and a national organization representing state title IV-E agencies indicated that implementing the ICWA-related data elements proposed in the 2016 SNPRM in addition to the elements proposed in the 2015 NPRM would require more time than one year and two states indicated a need for two to three years. Several state title IV-E agencies indicated that ICWA-related information is documented in case files and in narrative formats. Additionally, several state title IV-E agencies noted that collecting the information from courts would impact their implementation timeframe because the court information systems do not always contain the information proposed in the 2016 SNPRM or because there is no data exchange interface between the court and state title IV-E agency's case management system. Commenters to the 2015 NPRM also suggested that this final rule not be implemented until after Round 3 of the Child and Family Services Reviews (CFSR).

State title IV-E agencies and the national organization representing state title IV-E agencies recommended either a tiered or a phased-in approach to compliance with the AFCARS requirements and penalties. Several of those commenters suggested that we allow agencies additional time to implement the changes proposed in the 2016 SNPRM regarding ICWA data elements.

We understand states' concerns about the system changes that are needed since this final rule will implement the statutory AFCARS penalties. However, we determined that a two federal fiscal year period is sufficient for states to implement all changes for the AFCARS final rule. We are not providing a phase-in period for the ICWA-related data elements. As we noted in the 2016 SNPRM, we are issuing one final rule on AFCARS and we considered all comments on the 2015 NPRM and the 2016 SNPRM.

VI. Section-by-Section Discussion of Comments and Regulatory Provisions

Section 1355.40 Foster Care and Adoption Data Collection

In this section, we modified the requirements in the current section 1355.40 to require title IV-E agencies to continue to submit AFCARS data during the implementation timeframe. We must keep the current AFCARS regulations at section 1355.40 and the appendices to part 1355 until the dates listed in the

DATES

section of this rule. This means that title IV-E agencies must continue to report AFCARS data in the same manner they do currently until the implementation date of this final rule as discussed in section V of this final rule.

Section 1355.41 Scope of the Adoption and Foster Care Analysis and Reporting System

In this section, we set forth the scope of AFCARS.

In paragraph (a), we specify that state and tribal title IV-E agencies must collect and report AFCARS data, unless it is indicated for state title IV-E agencies only.

In paragraph (b), we specify that title IV-E agencies must submit the data to ACF on a semi-annual basis as required in section 1355.43 in a format according to ACF's specifications.

In paragraph (c)(1), we clarified that the terms in section 1355.41 through

1355.47 are defined as they appear in 45 CFR 1355.20, except that for purposes of specified data elements related to the Indian Child Welfare Act of 1978 (ICWA), terms are defined as they appear in 25 CFR 23.2 and 25 U.S.C. 1903. This is similar to paragraph (i)(1) as proposed in the 2016 SNPRM and incorporates the definitions recently promulgated in BIA's regulations at 25 CFR 23.2.

In paragraph (c)(2), we clarified for state title IV-E agencies that in cases where ICWA applies, the term “legal guardian” includes an Indian custodian as defined in ICWA at 25 U.S.C. 1903. These data elements are in sections 1355.44(c)(1), (c)(2), (d)(4), and (d)(5). We understand that there are instances when ICWA applies where Indian custodians may have legal responsibility for the child. Since we are integrating the ICWA-related data elements into select sections of this regulation, we want to take this opportunity to clarify that in the instances where ICWA applies and an Indian custodian may have legal responsibility of the child who is now in out-of-home care, the term “legal guardian” includes an Indian custodian.

Comment:

A few commenters suggested additional definitions, such as “voluntary” placement, “ICWA eligible child,” and “reactivation” of children who have multiple removals for the same reasons, and to expand the definition of tribe to distinguish between federally recognized, non-federally recognized, and historic/aboriginal tribes.

Response:

We did not add a definition of “voluntary” placement because the term is already defined by section 472(f) of the Act. We did not define “reactivation” because it is not a term used in these regulations. We did not specifically define “ICWA eligible child” in this regulation, but we did include by reference definitions in the BIA's ICWA regulation at 25 CFR 23.2 so if the BIA amends the definition of children to whom ICWA applies, it will automatically be changed for the purpose of these regulations rather than requiring ACF to issue another regulatory action. Since we integrated the ICWA-related data elements into other sections of the final rule we no longer have a list of applicable definitions pertaining to the ICWA-related data elements. Rather, section 1355.41(c)(1) specifies that terms in sections 1355.41 through 1355.47 are defined as they appear in 45 CFR 1355.20, except that for purposes of data elements related to ICWA, terms that appear in sections 1344.44(b)(3) through (b)(8), (c)(3), (c)(4), (c)(6), (c)(7), (d)(3), (e)(8) through (e)(11), (f)(10), and (h)(20) through (h)(23) are defined as they appear in 25 CFR 23.2 and 25 U.S.C. 1903. This means that the ICWA-related data elements will follow either BIA regulations as they appear in 25 CFR 23.2 or the statute at 25 U.S.C. 1903. In paragraph (c)(2), we clarified for state title IV-E agencies that in cases where ICWA applies, the term “legal guardian” includes an Indian custodian as defined in ICWA at 25 U.S.C. 1903. These data elements are in sections 1355.44(c)(1), (c)(2), (d)(4), and (d)(5).

Section 1355.42 Reporting Populations

In this section, we define the reporting populations for the AFCARS out-of-home care and adoption and guardianship assistance data files.

Section 1355.42(a) Out-of-Home Care Reporting Population

In paragraph (a), we define and clarify the out-of-home care reporting population. Consistent with current AFCARS, the child enters the out-of-home care reporting population when the child's first placement meets the definition of foster care in section 1355.20. A title IV-E agency must report a child of any age who is in out-of-home care for more than 24 hours.

Comment:

Several state title IV-E agencies, a national organization representing state child welfare agencies and other commenters supported the out-of-home care reporting population. However, several states and others expressed confusion over who is included in this population, particularly juvenile justice youth, runaway and homeless youth, youth on a trial home visit and children who reenter care.

Response:

We take this opportunity to clarify the reporting population for out-of-home care. Overall, the out-of-home care reporting population includes a child of any age who is in foster care as defined in 1355.20 for longer than 24 hours until the title IV-E agency no longer has placement and care responsibility. The out-of-home care reporting population includes a child under the title IV-E agency's placement and care who:

• Has run away or whose whereabouts are unknown at the time the title IV-E agency becomes responsible for the child, until the title IV-E agency's responsibility for placement and care ends;

• is placed into foster care after a non-foster care setting, until the title IV-E agency's placement and care responsibility ends;

• is placed at home, including a child on a trial discharge or trial home visit, until the title IV-E agency's placement and care responsibility ends;

• is placed from a foster care placement into a non-foster care setting, until the title IV-E agency's placement and care responsibility ends;

• is age 18 and older, including those in a supervised independent living setting, until the title IV-E agency's placement and care responsibility ends.

The out-of-home care reporting population also includes 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, and, on whose behalf title IV-E foster care maintenance payments are made until title IV-E foster care maintenance payments cease to be made on behalf of the child. We specifically note that children placed pursuant to title IV-E agreements are reported in the out-of-home care reporting population only if the child is receiving a title IV-E foster care maintenance payment under the title IV-E agreement. We added the phrase “for more than 24 hours” to the regulation so that it now reads “A title IV-E agency must report a child of any age who is in out-of-home care for more than 24 hours.” We want to be clear how title IV-E agencies must report children in the out-of-home care reporting population, consistent with current AFCARS regulations, found in the Appendix to section 1355. Since we removed the appendix, we are adding it to the regulation. During AFCARS Assessment Reviews, states have inquired about this policy many times and we feel that it is clearer to specify this in regulation.

Consistent with existing AFCARS policy, the out-of-home care reporting population also includes a child who is in foster care under the joint responsibility of another public agency, such as the juvenile justice agency, and the title IV-E agency until title IV-E foster care maintenance payments cease to be made on behalf of the child (see the Child Welfare Policy Manual section 1.3, question 13).

We understand there has been confusion in the past both in the reporting and analysis of the current AFCARS foster care reporting population related to children who are under the responsibility of another public agency or an Indian tribe pursuant to a title IV-E agreement. As noted in paragraph (a)(1)(ii), title IV-E agencies must include children for whom title IV-E foster care maintenance payments are provided under a title IV-

E agreement between the title IV-E agency and a public agency or an Indian tribe. We would like to clarify that only those children who are provided a title IV-E foster care maintenance payment under the title IV-E agreement are included in the out-of-home care reporting population; it does not include all the children in the other public agency or Indian tribe's placement and care responsibility. In paragraph (a)(1)(ii) we refer to only title IV-E agreements that meet the requirements of section 472(a)(2) of the Act; not all interagency agreements or contracts with the other public agency or Indian tribe for services or payments meet these requirements. Section 472(a)(2) of the Act allows for payment of title IV-E foster care maintenance on behalf of an eligible child if there is a title IV-E agreement with another public agency or Indian tribe even though the child is not under the placement and care responsibility of the reporting title IV-E agency. This clarification reflects a continuation of the AFCARS reporting requirements and is not a change in the out-of-home care reporting population. To further clarify the children in the out-of-home care reporting population, we modified the regulation in section 1355.44(d)(6)

Child and family circumstances at removal

to identify these children reported in AFCARS and we discuss in the preamble for that section.

Comment:

Several state title IV-E agencies expressed concerns that the proposal expands the reporting population and will be burdensome for agencies to report all data elements on the reporting population; one state expressed concern that the reporting population would impact their CFSR measures; and one state commented that the expansion of the reporting population imposes an unrealistic mandate on state child welfare agencies to be responsible and penalized for data collected by other agencies.

Response:

We retained the requirement for title IV-E agencies to report a child until the title IV-E agency no longer has placement and care responsibility. We expect that title IV-E agencies would have the information that we require to be reported if they have responsibility for the child, regardless of where the child is placed. The revision to the out-of-home care reporting population has no impact on the population of children for the CFSR measures because only the children in foster care will be included in the outcome measures. We continue to believe that the benefits of data reporting on the out-of-home care reporting population will allow ACF to develop a comprehensive picture of a child's experience in the title IV-E agency's placement and care with all removals, living arrangements, permanency plans, and exits from out-of-home care and the ability to better inform our monitoring efforts. We will provide technical assistance to agencies on any remaining clarifications regarding state specific questions related to the reporting population.

Section 1355.42(b) Adoption and Guardianship Assistance Reporting Population

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

In paragraph (b)(1) we require that the title IV-E agency must report data as described in section 1355.45 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 require the title IV-E agency to report information required by section 1355.45 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.

In paragraph (b)(1)(ii), we collect the information in section 1355.45 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.

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.

Comment:

Many commenters objected to reporting ongoing information on children who are in this reporting population, stating that adopted children do not have open service cases even when there is a subsidy attached. Additionally, many commenters felt that collecting information on any child who is in a legal guardianship under a title IV-E guardianship assistance agreement reaches beyond our statutory authority and would require a significant change in the application and report programs and laws and policies in many states. Several other groups agreed with this opinion and raised concerns about the burden on workers and duplication to information in the out-of-home care data file (section 1355.44(h)). Some national advocacy/public interest groups representing children and adoption agency interests were supportive of the separate data file proposed in the 2015 NPRM, and some suggested including children for whom there are finalized adoptions and guardianships without title IV-E assistance agreements.

Response:

We carefully considered the comments and have retained the adoption and guardianship assistance reporting population as proposed for the reasons we identified in the NPRM and given the growing dominance of this population as a component of the title IV-E beneficiary population. Overall, we believe there is a basic good governance principle at stake in having data about children who are receiving Federal benefits, especially considering the tremendous growth in the title IV-E adoption and guardianship assistance population over the last several years. While there is no statutory mandate to collect information for children under a title IV-E guardianship assistance agreement, section 479(c)(3)(C)(i) of the Act authorizes AFCARS to collect data on the “characteristics of children . . . removed from foster care”, which encompasses the title IV-E guardianship assistance population. We continue to believe it is essential to collect the same information on children under title IV-E guardianship agreements as for title IV-E adoption agreements because we have the same need for the information for children supported by title IV-E funding.

Section 1355.43 Data Reporting Requirements

This section contains the AFCARS data reporting requirements.

Section 1355.43(a) Report Periods and Deadlines

In paragraph (a), we specify that: (1) There are two six-month report periods based on the federal fiscal year, October 1 to March 31 and April 1 to September 30 and; (2) the title IV-E agency must submit the AFCARS data files to ACF within 45 days of the end of the report period (

i.e.,

by May 15 and November 14).

Comment:

A national organization representing state child welfare agencies recommended that we maintain the 45 day window for submitting data. They believe the 30 day requirement proposed in the 2015 NPRM would compromise data accuracy and integrity because some data may be excluded and there would not be enough time for agencies to check for errors in 30 days, particularly for state-supervised, county-administered states. Eight states and three other commenters opposed the shortened timeframe for the same reasons.

Response:

We modified the regulation to allow title IV-E agencies up to 45 days after the end of the report period to transmit the AFCARS file to accommodate commenter concerns. However, we wish to emphasize that the purpose of this 45 day transmission period is to extract the data and ensure the file is in the proper format for transmission. Data accuracy and integrity is to be completed by the IV-E agency on a continuous basis throughout the year. This is consistent with current AFCARS guidance.

Section 1355.43(b) Out-of-Home Care Data File

In paragraph (b), we provide instructions on how the title IV-E agency must report information for the out-of-home care reporting population.

In paragraph (b)(1), we require a title IV-E agency to submit the most recent information for data elements in the

General information

(section 1355.44(a)) and

Child information

(section 1355.44(b)) sections of the out-of-home care data file.

In paragraph (b)(2), we require the title IV-E agency to submit the most recent and historical information for most data elements in the following sections of the out-of-home care data file, unless the exception in paragraph (b)(3) applies:

• § 1355.44(c) Parent or legal guardian information

• § 1355.44(d) Removal information

• § 1355.44(e) Living arrangement and provider information

• § 1355.44(f) Permanency planning

• § 1355.44(g) General exit information

• § 1355.44(h) Exit to adoption and guardianship information

Comment:

In general, states, a national organization representing state child welfare agencies, and other national/advocacy organizations and individuals were supportive of the move to a historical data set because of the benefits in understanding outcomes for children and their experiences in out-of-home care. However, many commented that they are concerned that the final rule will be a challenge for states to implement because of a significant burden to title IV-E agencies to collect and report new additional historical data with existing resources. In addition, they expressed concern with the magnitude of historical data that would be required to be reported as it would need to be tracked at local levels in order to produce six-month report period data files.

Several national advocacy organizations and others made suggestions to expand historical reporting to other data elements, while others, mostly state title IV-E agencies, suggested we limit the data to “core elements” that have utility and validity at the national level. A national organization representing state child welfare agencies suggested that we allow AFCARS revisions to occur in stages, by first creating historical data files and then adding data elements that are truly necessary in a federal database.

Response:

We are retaining the requirement that title IV-E agencies report certain historical data for the original reasons we proposed. In general, we removed several data elements and included other data elements as appropriate, which we explain in the section-by-section preamble. We acknowledge that there are a few states that currently do not have a comprehensive electronic case management system or central database that contains the child's information across all counties. However, based on AFCARS Assessment Reviews, we believe that many of the historical data elements are available in the state's information system or electronic case record. We continue to believe that the benefits of historical data reporting will allow ACF to develop a comprehensive picture of a child's experience in the title IV-E agency's placement and care with all entries, living arrangements, permanency plans, and exits from out-of-home care. We believe there will be many benefits from receiving historical data, including: eliminating information gaps that exist in current AFCARS data which raise questions about the child's experiences and make the data more difficult to analyze; building upon ACF's ability to conduct sophisticated analyses of what happens to a child or groups of children in foster care; and providing better data to inform the current CFSR and other outcome monitoring efforts such as time in foster care, foster care re-entries and the stability of foster care placements. Finally, we did not revise the regulation to allow AFCARS revisions to occur in stages. Issuing one final rule on AFCARS with all revisions is the efficient way to revise AFCARS, since revisions to AFCARS have been proposed since the 2008 NPRM. We will provide technical assistance via webinars and other media channels to facilitate AFCARS implementation as well as offer one-on-one assistance to title IV-E agencies.

Comment:

Several states noted that there was not enough detail on the technical specifics related to the structure of the data set and asked for more specificity to better understand how title IV-E agencies will need to modify their systems. States, organizations, and others asked technical clarification questions and several recommended that states have access to these data files. Finally, there were a few technical clarification questions about the state specific system issues.

Response:

While we are not regulating the technical specifications for reporting historical data, we anticipate that title IV-E agencies will submit a data file in much the same way that they submit it now, only with more information. Most of the information that will be historical is currently stored in a state's electronic case file, based on our current knowledge of agency systems through our AFCARS Assessment Reviews. We will work through these technical pieces during implementation, which is consistent with the approach we took for the National Youth in Transition Database (NYTD). We intend to issue technical guidance as noted throughout the preamble regarding file specifications. Also, we will provide technical assistance via webinars and other media to implement AFCARS as well as providing one-on-one assistance with title IV-E agencies.

In paragraph (b)(3), we require that the title IV-E agency report the date of removal, exit date, and exit reason for each child who had an out-of-home care episode prior to the final rule. This means that title IV-E agencies do not need to report complete historical and current information for these children. We did not receive any comments.

Section 1355.43(c) Adoption and Guardianship Assistance Data File

In paragraph (c), we require that the title IV-E agency report the most recent information for the applicable data elements in § 1355.45 that pertains to each child in the adoption and guardianship assistance reporting population on the last day of the report period. We did not receive comments on the 2015 NPRM specific to this paragraph.

Section 1355.43(d) Missing Information

In paragraph (d), we specify how the title IV-E agency must report missing information.

Comment:

Several states and a national organization representing state child welfare agencies were concerned about the burden on workers of having to manually fill in blank information and stated that data systems should be able to automatically mark as blank.

Response:

We would like to take this opportunity to explain what is meant by “missing” information as workers will not “manually fill in blank

information.” The requirements in this paragraph relate to the technical aspects of creating the AFCARS data file and prohibit defaulting to a valid response option when the worker did not enter information into the case management system and it is therefore missing. This prohibition is longstanding ACF practice and consistent with the statutory mandate in section 479(c)(2) of the Act that any AFCARS data collected must be reliable and consistent over time. If the worker did not enter information into the case management system necessary for reporting on a particular data element (for example, it is missing), then the agency must report the data element as blank. We did not make substantive changes to the final rule in response to comments.

Comment:

Several commenters asked how “blank” information is distinguished from missing data and if missing information could be used to determine penalties.

Response:

“Blank” is a valid response option only when specified in individual data elements in section 1355.44. When “blank” is not a valid response option, and no information was entered into the information system for a data element, then that is considered a missing data error under section 1355.46(b)(1). This is consistent with ACF's longstanding practice. Errors under section 1355.46(b) are subject to the penalty provisions of section 1355.47.

Section 1355.43(e) Electronic Submission

In paragraph (e), we require a title IV-E agency to submit its data files to ACF electronically, in a format according to ACF's specifications.

Comment:

Several commenters requested details for data file submissions, the type of technologies title IV-E agencies must use to submit AFCARS data, and made a recommendation to use the same electronic submission process used for the NYTD.

Response:

We have intentionally left the specific details for electronic submissions out of the regulation. We have learned through our experience with the existing AFCARS that it is prudent not to regulate the technical specifications for transmitting data because 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. We currently provide guidance on submission of technical requirements and specifications through official ACF policy and technical bulletins and we will continue to do so in providing guidance on the final rule. We appreciate the suggestion with regard to the NYTD process, and we will determine whether we can use a similar process upon implementation of the final rule.

Section 1355.43(f) Record Retention

In paragraph (f), we require that title IV-E agencies must retain all records necessary to comply with the data requirements in sections 1355.41 through 1355.45. As we stated in the 2015 NPRM (80 FR 7146), 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.

Comment:

Four states expressed concerns with the proposed record retention timeframes, stating that they extend beyond the state's record retention and destruction laws, may require a legislative change to meet this retention schedule, and potential costs to procure new storage hardware or expand data centers.

Response:

This is a clarification of current AFCARS requirements. Currently, title IV-E agencies must maintain the child's history up to the time the child would no longer be eligible for services due to age in order to report the date of the first removal, the number of removals, and the date of discharge from the prior removals. Based on our AFCARS and SACWIS reviews, we understand that all agencies have electronic case records and that title IV-E agencies maintain all the information in their systems up to the time the child would no longer be eligible for services due to age. We understand that the typical age will be between 18 and 21, depending on the state or tribe's foster care program and we will work with agencies on this at implementation. We want to be clear that title IV-E agencies must retain all information on a child that is required to be reported to AFCARS electronically and not purge the data since AFCARS data files will now contain certain historical information on children in the out-of-home care reporting population. We are retaining the data element without changes in the final rule because title IV-E agencies must report historical information on a child in out-of-home care to be in compliance.

Section 1355.44 Out-of-Home Care Data File Elements

This section includes all of the data element descriptions for the out-of-home care reporting population.

Section 1355.44(a) General Information

In paragraphs (a)(1) through (a)(3), we require that title IV-E agencies collect and report the following general information: (1) The title IV-E agency submitting the AFCARS data; (2) the report period date; and (3) the local county, jurisdiction or equivalent unit that has responsibility for the child. We received no substantive comments on the general information data elements in paragraphs (a)(1) through (a)(3) or recommendations for changes. However, we clarified in the regulation text that the information must be submitted in a format according to ACF's specifications.

In paragraph (a)(4), we require that the title IV-E agency report the child's record number, which is an encrypted unique person identification number that is the same for the child, no matter where the child lives while in the placement and care responsibility of the title IV-E agency in out-of-home care and across all report periods and episodes.

Comment:

A couple of commenters noted that maintaining one encrypted record number for each child would be useful, for example, in reducing duplicate entries and erroneous eligibility determinations. However, a couple of state title IV-E agencies questioned why the agency must maintain the same number since agencies must include the complete placement history in each AFCARS transmission noting the administrative burden associated with maintaining the same number. Another commenter indicated there could be difficulties in maintaining the same child record number if the child was previously placed in a different county.

Response:

Our proposal for a consistent, unique, encrypted child record number for AFCARS reporting purposes is consistent with current practice. Ensuring that the child record number is consistent throughout the child's entire out-of-home care experience ensures that the agency reports the child's entire history. It also assists us in the analysis of the NYTD data, which also requires the use of an encrypted child record number. We are retaining this requirement and will provide technical assistance around this data element, including assistance related to maintaining record numbers across counties, to any agency requesting it at implementation.

Section 1355.44(b) Child Information

In paragraph (b), we require that the title IV-E agency report information about the child in out-of-home care

including demographic, health, parenting, and other pertinent information about the child. We made several revisions to this section from the 2015 NPRM and integrated ICWA-related data elements that were proposed in the 2016 SNPRM, revised data elements as suggested by commenters, moved data elements, and removed some proposed data elements that we describe below:

• Removed the data element requiring agencies to report whether or not the child was born in the United States. State title IV-E agencies and a national organization representing state child welfare agencies were opposed, stating: this level of specificity is not relevant to child welfare practice, could adversely impact work with families, and is not necessary in the AFCARS; it will be difficult to draw conclusions from this element; and, it does not address other situations, for example, whether the child is a naturalized citizen or one of the many U.S. citizens who are born on foreign soil. We still believe it is important to track information related to parental immigration detainment or deportation because we understand that this contributes to children entering foster care across the nation. In fact, the Applied Research Center recently estimated that up to 5,100 children were in foster care after their parents were detained or deported. Therefore, we added a circumstance at removal in paragraph (d) to address this instead.

• Removed data elements requiring agencies to report information related to the child's qualifying disability under IDEA. Several state title IV-E agencies and a national organization representing state child welfare agencies expressed confusion with the conditions in this data element and the health, behavioral or mental health conditions stating that the conditions were cumbersome and overlapped, which would lead to confusion among workers and commenters suggested the conditions be reconciled. Thus, we removed the data element on IDEA qualifying disability and revised the data element on health, behavioral or mental health conditions because we still want to track child disabilities, but we do not need to know the disability that qualified a child for IDEA (discussed below).

Section 1355.44(b)(1) Child's Date of Birth

In paragraph (b)(1), we require the title IV-E agency to report the child's birthdate. If the actual date of birth is unknown because the child has been abandoned, the agency must provide an estimated date of birth.

Comment:

One commenter suggested that we expand the definition of “abandoned” to include circumstances where the child was left with others and the identity of the parent(s) is known, but the parent(s) has not returned and therefore the child's date of birth is not known.

Response:

We have provided a specific definition of abandoned as follows: The child was left alone or with others and the identity of the parent(s) or legal guardian(s) is unknown and cannot be ascertained. We will retain the data element as proposed because an estimated date of birth is to be used in very restrictive circumstances when a parent's identity is not known, and not for an instance when a parent may be temporarily unavailable to provide the actual date of birth.

Section 1355.44(b)(2)(i) Child's Gender

In paragraph (b)(2)(i), we require that the title IV-E agency report the child's gender. We did not receive any relevant comments on this data element, however, we made a minor revision to rename the data element “Child's gender.”

Section 1355.44(b)(2)(ii) Child's Sexual Orientation

In paragraph (b)(2)(ii), we require that the title IV-E agency report the child's self-reported sexual orientation for youth age 14 and older. The title IV-E agency must report whether the child self-identifies as “straight or heterosexual,” “gay or lesbian,” “bisexual,” “don't know,” “something else,” or “decline” if the child declined to provide the information. The title IV-E agency must report “not applicable” for youth age 13 and under.

Comment:

We requested input on whether to require title IV-E agencies to collect LGBTQ-related data on youth in AFCARS. State title IV-E agencies, national advocacy/public interests groups and other organizations submitted comments on this topic. Commenters who supported collecting LGBTQ-related data were primarily advocacy organizations representing LGTBQ interests and generally asserted that such children/youth are over-represented in the child welfare system, but we do not have a full picture of their experiences in foster care. Supportive commenters also noted that such youth often have unique service needs, are at an increased risk for poor outcomes, are more likely to be placed in group settings and experience more placements. Many of these same commenters suggested that we require agencies to collect information about a child's gender identity or gender expression, or the assigned gender of the child or caregiver at birth, which would allow agencies to understand data about gender transition over the course of a child's life. One commenter suggested adding “two spirited” to address American Indian and Alaska Native children's identities. In contrast, other commenters, primarily state IV-E agencies and a national organization representing state child welfare agencies, suggested that we should not collect data related to sexual orientation in AFCARS. However, they expressed appreciation for ACF's interest in supporting and protecting LGBTQ youth in foster care and agreed that it is important to work toward a mechanism for collecting information related to a youth's sexual orientation, gender identity and expression. State commenters pointed to the following reasons for their objection to collecting the data: It is unlikely that the data will be reliable and consistent because the youth would self-report which could result in an undercount of LGBTQ children in foster care; the sensitive and private nature of the data and sexual identity issues and questioned the implications of having this information in a government record and it being used in a discriminatory way; and collecting the data may pose safety concerns because the LGBTQ community is still vulnerable to discrimination in many parts of the country. State commenters also expressed the importance of proper staff training to collect information for a data element on sexual orientation.

Response:

We were persuaded by the commenters who suggested we include a data element on a child's self-reported sexual orientation. In this final rule, we require title IV-E agencies to indicate whether the child self identifies as “straight or heterosexual,” “gay or lesbian,” “bisexual,” “don't know,” “something else,” or “decline” if the child declined to report this information. These response options are consistent with the Youth Risk Behavior Surveillance System (YRBSS) questionnaire from the Centers for Disease Control and Prevention. We did not add a response option of “two spirited” to be consistent with the YRBSS. By requiring this information to be reported, we hope to move closer toward our goal to better support children and youth in foster care who identify as LGBTQ and ensure that foster care placement resources and services are designed appropriately to meet their needs. We are aware of situations where youth in foster care have been unsupported in their foster

care placements when their foster caregivers became aware of their sexual orientation. We did not add data elements requiring agencies to report information about a child's gender identity or gender expression, or the assigned gender of the child. We understand the concerns expressed by commenters; however, we anticipate that adding this data element is the first step in addressing the needs of this population, and also will assist title IV-E agencies in recruiting and training foster care providers in meeting the needs of these youth. In regard to the concern that youth should not be obligated to report this sensitive and private information to their caseworker, the youth must self-report this information and if they do not feel comfortable disclosing such information, they may decline to report the information. In regard to the concern about having this information in a government record, information in state and tribal systems is protected by confidentiality requirements. We require title IV-E agencies to report “not applicable” for children age 13 and under to align with other statutory case planning requirements that apply to youth age 14 and older, for example the child's case plan must be developed in consultation with the child age 14 and older and the child's case planning team (at the child's option) (sections 475(1)(B) and 475(5)(C)(iv) of the Act) and must document the child's rights, including the right to receive a credit report annually. Additionally, the child must sign an acknowledgement that he/she received these rights and that they were explained in an age appropriate way (section 475A of the Act). We will provide technical assistance to agencies on collecting this information as needed.

Section 1355.44(b)(3) Reason To Know a Child Is an Indian Child as Defined in the Indian Child Welfare Act

In paragraph (b)(3), we require that the state title IV-E agency report whether the state title IV-E agency researched whether there is reason to know that a child is an “Indian Child” as defined in ICWA by: Inquiring with the child, the child's biological or adoptive parents (if not deceased), the child's Indian custodian (if the child has one), and the child's extended family; indicating whether the child is a member or eligible for membership in a tribe; and indicating whether the domicile or residence of the child, parent, or the Indian custodian is on an Indian reservation or in an Alaska Native Village. This is similar to paragraph (i)(3) as proposed in the 2016 SNPRM, however we moved data elements related to ascertaining the tribal membership status of the child's parents to section 1355.44(c)(3) and (c)(4), and we added, in response to comments discussed later, a data element for inquiring with the child's extended family in paragraph (b)(3)(iv).

Comment:

Tribes, tribal organizations, child welfare organizations, and some states expressed that researching to determine whether a child may be an Indian child under ICWA is necessary to determine tribal status and for implementation of ICWA. Commenters stated that failure to research whether a child is an Indian child risks Indian children not being identified, and risks delay, expensive repetition of court proceedings, and placement instability if it is later discovered that a child is an Indian child under ICWA. Several states said that information on identifying whether a child is an Indian child as defined in ICWA is currently collected, although states varied in how they collect this information with some stating that it is collected through case narratives (electronic or paper). A state objected to expending resources required to report data in AFCARS that is already collected in case narrative. Several states and the national organization representing state child welfare agencies suggested simplifying the data element, stating that the primary focus should be on whether the agency made an inquiry, of whom, and whether that triggered notice per ICWA to a federally recognized tribe. One state suggested including a response option noting whether a particular data element is “not applicable due to age or developmental ability.”

Response:

We did not make changes based on these comments to simplify the data elements. We retained the data elements to reflect requirements in BIA's regulation at 25 CFR 23.107(a). BIA's regulation requires state courts to ask each participant in an emergency, voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child. The data will help identify of which sources title IV-E agencies most often inquire about whether a child is an Indian child as defined in ICWA and for which sources title IV-E agencies may need resource or training to support inquiry. Further, we are not revising the response options to allow for a “not applicable” response option. The requirement is for the state title IV-E agency to report whether or not it inquired of the specific individuals listed, including the child, whether the child is a member of or eligible for membership in an Indian tribe. If the state title IV-E agency was unable to inquire with the child, the agency would respond “no.”

Comment:

A state commented that these data elements ask for responses of “yes” or “no” that removes a level of specificity and obscures some incomplete data, such as there is no way to indicate when there are multiple tribes involved.

Response:

We understand the suggestion to be a technical issue for when states design their systems to report the required information and does not require a change in the final rule. We will work with state title IV-E agencies as they implement the final rule as needed.

Comment:

A state expressed that this data element doesn't explicitly note there is a single parent by indicating the response option of “no” and stated that the elements are gender specific.

Response:

We understand the suggestion to be a technical issue for when states design their systems to report the required information. We will work with state title IV-E agencies as they implement the final rule.

Comment:

One state suggested adding a data element that records when a tribe confirms that the child is a member or eligible for membership.

Response:

We did not revise the final rule in response to these suggestions. The final rule contains the data elements we believe are most critical in relation to children to whom ICWA applies.

Comment:

A tribe stated that the language “inquired” is vague and was confused what the agency is inquiring about in this section.

Response:

We modified the language of the data element to require the state title IV-E agency to indicate whether the state title IV-E agency researched whether there is a reason to know that the child is an Indian child as defined in ICWA. In each paragraph (b)(3)(i) through (b)(3)(vii), the state title IV-E agency must respond to these threshold questions that indicate whether the state title IV-E agency knows or has “reason to know” that a child is an Indian child and thus is subject to the protections under ICWA.

Comment:

Tribes and several national advocacy organizations suggested adding the phrase “extended family” to the list of persons to whom the state may have inquired stating that the extended family would have useful information regarding whether the child may be an Indian child.

Response:

We agree with the suggestion and added the requirement for the state title IV-E agency to also report whether it inquired with the

child's extended family in paragraph (b)(3)(iv).

Comment:

Tribes and organizations representing tribal interests recommended replacing “on an Indian reservation” with “within a predominantly Indian community” to be more inclusive to tribal communities. A state suggested adding individual data elements to inquire about the residences of each child, parent, and Indian custodian to determine whether any of them are domiciled on a reservation.

Response:

We did not revise the final rule in response to these suggestions because the data element in paragraph (b)(5)(vii) follows the language used in several sections of BIA's regulation (

e.g.,

25 CFR 23.107 and 23.113) about the “domicile or residence . . . on a reservation or in an Alaska Native village.”

Section 1355.44(b)(4) Application of ICWA and (b)(5) Court Determination That ICWA Applies

In paragraph (b)(4), we require that the state title IV-E agency indicate whether it knows or has reason to know that a child is an Indian child as defined in ICWA. If the state title IV-E agency indicates “yes,” the state title IV-E agency must indicate the date it first discovered information that indicates that the child is or may be an Indian child as defined by ICWA in paragraph (b)(4)(i) and all federally recognized Indian tribes that are or may potentially be the Indian child's tribe(s) in paragraph (b)(4)(ii).

In paragraph (b)(5), we require that the state title IV-E agency indicate whether a court determined that ICWA applies or that the court is applying ICWA because it knows or has reason to know a child is an Indian child as defined in ICWA in accordance with 25 CFR 23.107(b)(2), by indicating “yes, ICWA applies,” “no, ICWA does not apply,” or “no court determination.” If the state title IV-E agency indicated “yes, ICWA applies,” the state title IV-E agency must report the date that the court determined that ICWA applies in paragraph (b)(5)(i), and the Indian tribe the court determined to be the Indian child's tribe for ICWA purposes in paragraph (b)(5)(ii). This is similar to paragraph (i)(5) as proposed in the 2016 SNPRM.

Comment:

States commented that some state laws offer protections that exceed the minimum federal standards in ICWA. For example, some states require ICWA protections for children who are members of state recognized tribes, children who are descendants but not enrolled, or eligible for enrollment in a tribe, or for children who are members of tribes in Canada.

Response:

We encourage states to collect data they need to implement and evaluate state child welfare laws but only require collecting and reporting the ICWA related data through AFCARS as outlined in this rule.

Comment:

One commenter was concerned about reporting the court finding because the state may not know whether the tribe was asked or verified the child's membership status. Another commenter recommended that this element be removed because of uncertainty in how this element is different from asking if the state agency has reason to know the child is covered by ICWA.

Response:

We did not make any changes to the final rule to remove this data element. As we indicated in our rational in the 2016 SNPRM, data elements related to whether ICWA applies are essential because application of ICWA triggers procedural and substantive protections and this data will provide a national number of children in the out-of-home care reporting population to whom ICWA applies. However, we revised the final rule to reflect the language in the BIA's regulation at 25 CFR 23.107, which does not require a court order but instead a “court determination.” We also revised the final rule for the state title IV-E agency to indicate the date that the court determined that ICWA applies (paragraph (b)(5)(i)), rather than the date of the court order.

Comment:

One tribe suggested that the state title IV-E agency should be required to continue to report data that accurately reflects tribal involvement even when a court order does not include the information. The commenter felt this is important to capture to ensure that courts are diligent about engaging the tribe and avoid opportunities to misrepresent the true number of ICWA cases involved in State court.

Response:

We agree that tribal involvement is an essential component of ensuring the courts are diligent about engaging tribes. However, we did not add the suggested data element because we must balance the need to have the information with the burden and cost it places on state agencies to do so.

Comment:

One commenter asked whether ACF will compare the name of the tribe indicated in this data element, with the name of the tribe listed in other data elements, and whether it will be considered an error if the name of the tribe is different for each element. The commenter suggests that the data element instead ask whether the title IV-E agency verified that agency records regarding the name of the Indian tribe matched state records.

Response:

ACF will develop and issue error specifications in separate guidance and will work with state title IV-E agencies during implementation to address these types of technical issues with reporting the data.

Section 1355.44(b)(6) Notification

In paragraph (b)(6), if a state title IV-E agency indicated “yes” to paragraph (b)(4) or indicated “yes, ICWA applies” to paragraph (b)(5), we require that the state title IV-E agency report: Whether the Indian child's parent or Indian custodian was sent legal notice of the child custody proceeding more than 10 days prior to the first child custody proceeding in accordance with 25 U.S.C. 1912(a); whether the Indian child's tribe(s) (if known) was sent legal notice of the child custody proceedings more than 10 days prior to the first child custody proceeding; and the name(s) of the tribe(s) sent notice. The first two requirements are similar to paragraph (i)(8) as proposed in the 2016 SNPRM and the third requirement is the same as paragraph (i)(9) as proposed in the 2016 SNPRM.

Comment:

Two states suggested requiring the state to report the date that the tribe, mother, father, and Indian custodian were notified of the child's removal as that will provide information on whether the 10 day legal notice requirements were met. One state commented that because they do not know 10 days in advance when a child is going to be removed that we instead require the state to report the date that the notice was sent. Another state suggested adding a data element asking when a notification was made to the tribe and when/if the tribe provided a response, and another state suggested removing notification elements until data exchanges are improved with the court to make this efficient. One state suggested removing the response option “the child's Indian tribe is unknown” and for the state to report the Indian child's tribe's name.

Response:

We did not make any changes to the final rule to remove the suggested response option or to require agencies to provide the date of notification. We determined that the actual date of the notification is not essential, but instead, as we proposed, whether the state sent the notice within the statutory 10 day notification requirement. We are retaining the response option “the child's Indian tribe is unknown” as we are aware that there may be instances where ICWA applies because a state knows or has reason to

know a child is an Indian child yet the name of the child's tribe is unknown. We proposed in the 2016 SNPRM and retained in the final rule the requirement for the state to indicate the name of the Indian child's tribe that was sent proper legal notice more than 10 days prior to the first child custody proceeding in accordance with 25 U.S.C. 1912. We have, however, removed the requirement for the state title IV-E agency to report whether the state title IV-E agency replied with additional information that the Indian child's tribe(s) requested, if such a request was made.

Comment:

A state noted the proposed data element does not accommodate a situation when there are potentially multiple tribes that were sent the notification.

Response:

We are retaining the requirement in the final rule for the state to indicate whether the Indian child's tribe(s) was given proper legal notice more than 10 days prior to the first child custody proceeding in accordance with 25 U.S.C. 1912(a). We will provide technical assistance to states that need assistance in reporting multiple tribes.

Comment:

The national organization representing state child welfare agencies supports the notification data elements that align with ICWA mandates. They noted that states have different methods to notify the parties, such as through a court process, the state's attorney general's office, or by the state agency. The organization recommends simplifying the data elements to require the agency to report to whom the agency gave proper notice,

i.e.,

parents, custodians, and tribes.

Response:

We understand the suggestion to be a technical issue for when states design their systems to collect the required information that would not require a change to the final rule. States may design a drop down menu or another mechanism appropriate to their system to report the notice requirements as long as the state can report whether the state sent the notice to the mandated parties more than 10 days prior to the proceeding.

Comment:

A tribe recommended that we also require states to report that the state sent the notifications when parental rights will be terminated for an Indian child.

Response:

We are retaining the notification requirements for the state to report whether it provided the 10 day notifications in reference to the first child custody proceeding. The BIA defines child-custody proceeding for ICWA purposes to mean and include any action, other than an emergency proceeding, that may culminate in one of the following outcomes: Foster-care placement, termination of parental rights, pre-adoptive placement, and adoptive placement. Therefore, if the first child custody proceeding is in reference to a TPR, the agency must report that information to AFCARS.

Comment:

Two organizations suggested that we require states to report whether a state court or agency used the list of tribes published by the Bureau of Indian Affairs to notify a tribe of the first child custody hearing.

Response:

We determined that it is not essential for states to specify in AFCARS whether they sent the notice to the tribe as it is listed in the BIA publication. As we indicated in the preamble to the 2016 SNPRM, the timing of the notice is an essential procedural protection provided by ICWA. Hence, we proposed and issued in the final rule the requirement for states to report whether proper legal notice of the child custody proceedings was sent more than 10 days prior to the first child custody proceeding. This is consistent with the requirements under the ICWA statute at 25 U.S.C. 1912(a) and the BIA regulations at 23.11(c).

Comment:

Two organizations suggested that we require the state to report whether legal notice was provided for the first child custody hearing to the same grandparents and other adult relatives who were notified about a child's placement into foster care as required by title IV-E.

Response:

We tailored the ICWA data elements that we proposed and issued in the final rule to be consistent with the requirements under the ICWA statute and the BIA regulations, and relative notification of the first child custody hearing is not required. However, we added a requirement in 1355.44(b)(3)(iv) for the state to report whether the state title IV-E agency researched whether there is a reason to know that the child is an Indian child as defined in ICWA by indicating whether the state agency inquired with the child's extended family. We believe this could respond to the intent of the commenter's suggestion, which is to ensure that an Indian child's relatives are made aware when a child in their family is placed into foster care.

Comment:

We received several comments regarding the proposed data element requiring the state to report in instances where the tribe(s) requested additional information, whether the state title IV-E agency replied with the additional information that the Indian tribe(s) requested. One state commented that the data element is unclear and asked whether the timeframe was at any time during the six month report period or whether it only applied to the first child custody proceeding. Another state commented that it does not collect data on whether the tribe(s) requested additional information or whether the agency replied to the request. The national organization representing state child welfare agencies also recommended removing the element because they did not believe the proposed data file element provides essential information on children for whom ICWA applies. A tribe recommended adding the date of the tribal request for additional information and the date the agency responded to the tribe's request for additional information.

Response:

We agree with the suggestions to remove the data element in proposed (i)(10) in the 2016 SNPRM that required the state to indicate whether the state title IV-E agency replied with the additional information that the Indian tribe(s) requested. We have removed this data element from the final rule.

Section 1355.44(b)(7) Request To Transfer to Tribal Court and (b)(8) Denial of Transfer

In paragraph (b)(7), if the state title IV-E agency indicated “yes” to paragraph (b)(4) or indicated “yes, ICWA applies” to paragraph (b)(5), we require that the state title IV-E agency report whether either parent, the Indian custodian, or Indian child's tribe requested, orally on the record or in writing, that the state court transfer the foster care or termination of parental rights proceeding to the jurisdiction of the child's tribe at any point during the report period. This is similar to paragraph (i)(6) as proposed in the 2016 SNPRM, except that the language was updated to be consistent with 25 CFR 23.115.

In paragraph (b)(8), if the state title IV-E agency indicated “yes” to paragraph (b)(7), we require that the state title IV-E agency report whether the state court denied the request to transfer the case to tribal jurisdiction and if so, the reason for the denial from a list of three options, as outlined in ICWA statute: (1) Either of the parents objected to transferring the case to the tribal court; or (2) the tribal court declined the transfer to the tribal court; or (3) the state court determined good cause exists for denying the transfer to the tribal court. This is similar to paragraph (i)(7) as proposed in the 2016 SNPRM, except that we updated the language to be consistent with 25 CFR 23.118.

Comment:

A tribe commented that “good cause” findings should be made as outlined in the BIA's Guidelines and suggested that we add a data element that captures the specific “good cause” finding used to decline each transfer.

Response:

We have not made any changes to the final rule to incorporate recommendations for the noted BIA's Guidelines. Rather in the final rule, if the state court determined that transfer is not appropriate, the state must report which reason from among a list of three options, as outlined in ICWA statute (25 U.S.C. 1911(b)) and BIA's regulation at 25 CFR 23.117: (1) Either of the parents objected to transferring the case to the tribal court; or (2) the tribal court declined the transfer to the tribal court; or (3) the state court determined good cause exists for denying the transfer to the tribal court.

Comment:

The national organization representing state child welfare agencies supports capturing data from the court order indicating a transfer of the case to the tribal court of the Indian child's tribe and an indication on the reason for denial (when applicable). However, they suggested simplifying the data elements to ask only whether a tribe requested to transfer the case to tribal court and if yes, whether the transfer was ordered. We also received suggestions from states on revising the element. One state recommended changing the data element to capture the most recent transfer request regardless of when the request occurred as long as it is during the current removal episode.

Response:

ACF is not persuaded by the comments to revise the data elements regarding transferring cases from state court to tribal jurisdictions. We are retaining the two proposed data elements with modifications to be consistent with the BIA regulation at 25 CFR 23.115. That regulation states that the parents, Indian custodian, or the Indian child's tribe may request, orally on the record or in writing, that the state court transfer the child custody proceeding to tribal jurisdiction. It does not require that the request be contained in a court order. Therefore we are removing the requirement for the agency to report only when there is a specific court order requesting a transfer of jurisdiction and adopting the same BIA regulatory language so that we are consistent. Further, we clarified the instructions for this element in the final rule to require the state to report if there was a request at any point during the report period.

Comment:

Several organizations representing tribal interests suggested that we require the state to report the date that the state court approved transfer of jurisdiction to the tribe.

Response:

We appreciate the suggestion and understand the value for determining timely implementation of ICWA and case transfer between jurisdictions, however, we did not change the final rule to add this data element. Rather, we retained the two transfer data elements we proposed in the 2016 SNPRM and modified them to be consistent with the BIA regulations. As we indicated in the 2016 SNPRM, we require two transfer data elements to provide an understanding of how many children in foster care with ICWA protections are or are not transferred to the Indian child's tribe, the reasons why a state court did not transfer the case, and aid in identifying tribal capacity needs and issues that may prevent tribes from taking jurisdiction.

Comment:

One tribe suggested that the phrase “a court order” be expanded to include “or other entry of the Court”, as at times the state court may not enter an order transferring the case at the same hearing as when a petition to transfer is submitted to a court.

Response:

We have removed the term “court order” from paragraphs (b)(7) and (b)(8) to be consistent with the BIA regulation at 25 CFR 23.115 through 23.117. That regulation states that the parents, Indian custodian, or the Indian child's tribe may request, orally on the record or in writing, that the state court transfer the child custody proceeding to tribal jurisdiction. The BIA regulation does not require that the request or the order for transfer be contained in a court order.

Section 1355.44(b)(9) Child's Race

In paragraph (b)(9), we require that the title IV-E agency report the race of the child. The options are: American Indian or Alaska Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, White, declined, abandoned, and unknown because the child or parent or legal guardian does not know or is unable to communicate the child's race, or at least one race of the child.

Comment:

Two states and one other commenter did not agree that we should include “race-abandoned” as a response option in this data element because it is not a race. One commenter also noted that including “race-abandoned” and “race-unknown” as response options are confusing.

Response:

We provide the agency with the option of not reporting a specific race in two situations when the race is not known: When the child is abandoned and therefore the race of the child is unknown (race-abandoned) or that the race is unknown because the child or parent or legal guardian does not know or is unable to communicate the child's race (race-unknown). The response option of race-abandoned allows us to differentiate when there is no parent available to provide race information from when the child or parent does not know or is unable to communicate it. A child's race can be categorized as unknown only if a child or his parents do not actually know the child's race. If the title IV-E agency has not asked the child or parent for the child's race, the agency may not report unknown as the response. 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.

Comment:

Two commenters representing tribal interests suggested that we amend the racial category of American Indian or Alaska Native to include whether the child has origins in any of the original peoples of North or South America and if yes, whether the child is a member of, or eligible for, membership in a federally recognized Indian tribe. Both commenters also recommended that we delete the language, “maintains tribal affiliation and community attachment” in the race definition of American Indian or Alaska Native.

Response:

The language used reflects the OMB Revised Standards for the Classification of Federal Data on Race and Ethnicity, standardizing federal data collection. We agree that requiring state title IV-E agencies to collect and report data that could identify a child as an Indian child as defined in ICWA is of paramount importance. Therefore, while we did not revise this data element, we require additional information on the child's tribal membership or eligibility for tribal membership in paragraphs (b)(3), (b)(4), and (b)(5).

Section 1355.44(b)(10) Child's Hispanic or Latino Ethnicity

In paragraph (b)(10), we require that the title IV-E agency report the Hispanic or Latino ethnicity of the child. The agency must respond “yes,” “no,” “declined,” “abandoned,” or “unknown” because the child, parent or legal guardian does not know or is unable to communicate the child's ethnicity.

Comment:

One commenter suggested that we expand the definition of “abandoned” to include circumstances where the child was left with others and the identity of the parent(s) is known,

but the parent(s) has failed to return and therefore the child's Hispanic or Latino ethnicity is not known.

Response:

We have provided a specific definition of abandoned as follows: The child was left alone or with others and the identity of the parent(s) or legal guardian(s) is unknown and cannot be ascertained. We will retain the data element as proposed as it is to be used in very limited circumstances when a parent's identity is not known, and therefore not available to identify the child's ethnicity, and not any time a parent may be temporarily unavailable.

Section 1355.44(b)(11) and (b)(12) Health Assessment Date and Timely

In paragraphs (b)(11) and (12), we require the title IV-E agency to report whether the child had a health assessment during the current out-of-home care episode, and if so, the date of the child's most recent health assessment and if it was within the timeframes established by the title IV-E agency.

Comment:

State title IV-E agencies and a national organization representing state child welfare agencies raised concerns about collecting information on timeliness and frequency of health assessments. They indicated that health assessment requirements would differ based on the agency's schedule and individual child circumstances, such as age and medical condition; therefore, it would be difficult to compare data across title IV-E agencies. They stated that to answer the question of timeliness, the system must know the assessment schedule and dates of assessments, doubling the data entry requirements. States suggested that this information would be better assessed as part of a qualitative assessment that focuses on child well-being outcomes or case reviews, rather than a national data set. One state recommended that we require agencies to report health assessment information according to an established federal timeline.

Response:

We appreciate the comments, but did not remove the requirement for reporting on health assessments because we still believe it is important to ensure that the title IV-E agency is identifying and addressing the health needs of children in foster care. As we indicated in the 2015 NPRM, collecting this information will allow us to ensure children in foster care are receiving health assessments in accordance with the title IV-E agency's established schedule per the statutory requirements in section 422(b)(15)(A) of the Act. It also provides us an opportunity to ensure that the child's health needs are identified, reviewed, and addressed by a medical professional through routine health assessments. These data elements may also serve as a proxy for other well-being indicators. We also did not impose a requirement that title IV-E agencies report health assessment information according to an established federal timeline because section 422(b)(15)(A) does not provide ACF with the authority to impose a federal timeframe on title IV-E agencies. Instead, agencies describe and adhere to the timeframes described in their Child and Family Services Plan.

Comment:

One national advocacy/public interest group supported including this data, but suggested clarifying the language to read “timely health assessment as defined by the state.” Another national advocacy/public interest group pointed out that the term “health assessment” has varying implications and suggested that ACF provide guidance on the difference between health screenings and health evaluations.

Response:

In reference to the suggestion to clarify that the assessments are timely based on title IV-E agency specific definitions, paragraph (b)(11) asks whether the date reported in paragraph (b)(12)(ii), if applicable, is “within the timeframes for initial and follow-up health screenings established by the title IV-E agency, as required by section 422(b)(15)(A) of the Act.” Hence, the information that the title IV-E agency indicates should be in the context of this title IV-B plan requirement regarding the ongoing oversight of health care services, with which agencies are already complying. The title IV-E agency must report the most recent health screenings that are conducted according to the agency's established schedule. ACF provided guidance in ACF-CB-PI-10-11 that agency schedules for initial and periodic health screenings “should mirror or incorporate elements of existing professional guidelines for physical, mental, and dental health screenings and standards of care.” In regard to the request to distinguish between a health screening and a health evaluation, we will provide technical assistance to states if they need assistance in determining how to report on a child's health assessment, which could be either a screening or an evaluation, depending on the agency's process.

Comment:

State title IV-E agencies felt that the language of the data elements was vague and questioned how to report whether a health assessment is “timely” based on the agency's “own established schedule.” Several states asked whether these data elements included all initial or follow-up assessments during the out-of-home care episode and pre-placement screenings.

Response:

We appreciate the commenters' questions and revised the regulation to clarify the instructions, based on the commenters' concerns. We revised the regulation to require first that the agency report whether the child had a health assessment during the current out-of-home care episode in paragraph (b)(11)(i). The assessment could include an initial health screening or any follow-up health screening per section 422(b)(15)(A) of the Act. If so, the title IV-E agency must report the date the child's most recent health assessment during the out-of-home care episode and whether it is within the timeframes for initial and follow-up health screenings established by the title IV-E agency per section 422(b)(15)(A) of the Act (paragraphs (b)(11)(ii) and (b)(12)). This revision is to make clear that the agency is to report on the timeliness of the most recent health assessment. If the agency indicates that there was no health assessment done, there is no requirement to report the date and timeliness of the assessment.

Comment:

A state title IV-E agency asked how a blank response is distinguished from missing data and how to report if a child is not in care long enough to receive a health assessment or the timeliness straddles reporting periods.

Response:

In reference to the blank response query, consistent with ACF's longstanding practice, “blank” is a valid response option only when specified in individual data elements. In paragraph (b)(11)(i), the agency must report either “yes” or “no;” “blank” is not an appropriate response and is considered a missing data error under section 1355.46(b)(1). “Blank” is an appropriate response for paragraphs (b)(11)(ii) and (b)(12) only if the response to paragraph (b)(11)(i) is “no.” Thus, if a child has not been in foster care long enough to have an assessment, the agency would report no in paragraph (b)(11)(i) and blank for paragraphs (b)(11)(ii) and (b)(12).

Comment:

Several national advocacy/public interest groups suggested additional data elements, such as specific dates of the initial health assessment; initial dental evaluations and other preventative dental care; whether children in foster care are receiving Early and Period Screening, Diagnosis, and Treatment (EPSDT) services under Medicaid; and for title IV-E agencies to report on each aspect of the title IV-B Health Care

Coordination and Oversight Plan under section 422(b)(15)(A) of the Act (for example, how children's medical information will be updated, steps to ensure continuity of health services, and protocols for the oversight of prescription medicines).

Response:

As we indicated in the 2015 NPRM, collecting health, behavioral or mental health related information will allow us to ensure children in foster care are receiving health assessments in accordance with the title IV-E agency's established schedule per the statutory requirements in section 422(b)(15)(A) if the Act. Therefore, we will not require agencies to report additional health assessment information because we do not have a need for those details at the national level.

Section 1355.44(b)(13) Health, Behavioral or Mental Health Conditions

In paragraph (b)(13), we require the title IV-E agency to report whether the child was diagnosed by a qualified professional as having one or more health, behavioral or mental health conditions from a list of eleven conditions prior to or during the child's current out-of-home care episode. If so, the agency must report whether it's an existing condition or a previous condition (a previous diagnoses that no longer exists as a current condition). The title IV-E agency must also report if the child had an exam or assessment, but none of the conditions apply, or if the agency has not received the results of the exam or assessment. When the child has not had an exam or assessment, the agency must indicate so.

Comment:

State title IV-E agencies, a national organization representing state child welfare agencies, and many other national advocacy/public interest groups indicated that the qualifying disabilities of the proposed element

IDEA Qualifying Disability

and the conditions for health, behavioral or mental health conditions overlapped which would confuse workers and lead to inaccurate and misleading data at a national level. Some national advocacy/public interest groups also suggested including specific additional conditions, such as oppositional defiant disorder, major depressive disorder, attention deficit hyperactivity disorder, and traumatic brain injury.

Response:

We were persuaded by the number of commenters who expressed concern about the overlapping health, behavioral or mental health conditions and the IDEA qualifying disabilities and revised the final rule so that there is one element that addresses a child's health, behavioral or mental health conditions. We removed the data element

IDEA Qualifying Disability

in the final rule. We combined some of the conditions we proposed for the

IDEA Qualifying Disability

data element with the

Health, behavioral or mental health conditions

that we modified to update with current common diagnoses suggested by several commenters, separated out conditions that are currently reported together, as suggested by commenters, and revised to more closely align with definitions for diagnoses from the National Institutes of Health (NIH). We describe these revisions below. We believe that this revised list will provide us with better data on the child's health characteristics and meet the requirement of section 479A(a)(7)(A)(v) of the Act regarding reporting clinically diagnosed conditions for certain children in foster care.

Paragraph (b)(13)(i) is “Intellectual disability” ” and is unchanged from the 2015 NPRM because we did not receive comments specifically asking for a revision to this definition.

Paragraph (b)(13)(ii) is “Autism spectrum disorder” that we combined from the

IDEA qualifying disability

data element proposed in the 2015 NPRM and revised to be more closely aligned with the definition from the

NIH Neurological Disorders and Stroke.

Paragraph (b)(13)(iii) is “Visual impairment and blindness” that we combined from the

IDEA qualifying disability

and

Health, behavioral or mental health conditions

data elements proposed in the 2015 NPRM.

Paragraph (b)(13)(iv) is “Hearing impairment and deafness” that we combined from the

IDEA qualifying disability

and

Health, behavioral or mental health conditions

data elements proposed in the 2015 NPRM.

Paragraph (b)(13)(v) is “Orthopedic impairment or other physical condition” that we combined from the

IDEA qualifying disability

and

Health, behavioral or mental health conditions

data elements proposed in the 2015 NPRM.

Paragraph (b)(13)(vi) is “Mental/emotional disorders” that we combined from the

IDEA qualifying disability

and

Health, behavioral or mental health conditions

data elements proposed in the 2015 NPRM

.

Paragraph (b)(13)(vii) is “Attention deficit hyperactivity disorder” that we included as a separate condition, based on comments suggesting that it not be included with another condition. The

definition is based on the definition from the NIH National Institutes of Mental Health.

Paragraph (b)(13)(viii) is “Serious mental disorders” that we included as a separate condition that comprises several disorders previously proposed under the

IDEA qualifying disability

and

Health, behavioral or mental health conditions

data elements. The definition is also based in part on the definitions for bipolar disorder and psychotic disorders from the NIH National Library of Medicine.

Paragraph (b)(13)(ix) is “Developmental delay” that we combined from the

IDEA qualifying disability

data element proposed in the 2015 NPRM and revised to include delays related to language/speech and motor skills.

Paragraph (b)(13)(x) is “Developmental disability” and is unchanged from the 2015 NPRM because it is based on statute.

Paragraph (b)(13)(xi) is “Other diagnosed condition” that we combined from several conditions proposed in the

IDEA qualifying disability

and

Health, behavioral or mental health conditions

data elements proposed in the 2015 NPRM.

Comment:

A national organization representing state child welfare agencies and a few states commented that reporting over time whether a child's condition is existing, previous, or does not apply could make the data file cumbersome, confuse aggregate data at the federal level, and place burden on workers who may not have the training or expertise on detailed, technical health care information. They felt that what was collected in AFCARS for conditions is reasonable because it informs the relevant issues at a high level. They made suggestions for other mechanisms to report the data, such as data sharing agreements with other agencies.

Response:

We have not removed the requirement for agencies to report whether a child's condition is existing, previous, or does not apply. We continue to believe, as we stated in the 2015 NPRM, that it is important to capture comprehensive information on a child's diagnosed health, behavioral and mental health conditions beyond the current AFCARS report period, which this data element will allow. Collecting 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, which current AFCARS data does not allow. We will provide technical assistance on reporting this information as needed.

Comment:

Two states asked for clarification as to who is considered a “qualified professional.”

Response:

As stated in the 2015 NPRM preamble (80 FR 7149), a qualified professional is determined by applicable laws and policies of the state or tribal service area and may include a doctor, psychiatrist, or, if applicable in the state or tribal service area, a licensed clinical psychologist or social worker. This is consistent with current AFCARS practice.

Comment:

Two states were confused by the response options on whether a qualified professional has conducted an exam or assessment and recommend we only provide two response options for the agency to indicate whether or not the child has a diagnosed condition, or if it's unknown.

Response:

We did not revise the final rule based on the comments to allow for an “unknown” response option. We intentionally did not propose a response option of “unknown” because it is too broad for a meaningful analysis and has a high potential to be overused. These responses as well as the response options for previous or existing condition are designed to give us information regarding a child's health, behavioral or mental health conditions that vary over time without having to track other more complicated historical information such as start and end dates of conditions. We believe that this will provide us with better data on the child's health characteristics and meet the requirement of section 479A(a)(7)(A)(v) of the Act regarding reporting clinically diagnosed conditions for certain children in foster care. Additionally, we will provide technical assistance on reporting this information as needed.

Comment:

Six states sought clarification on when to mark conditions as “previous.”

Response:

The agency reports the response option of “previous” when a child was diagnosed for a condition that no longer exists as decided by a medical professional.

Comment:

One state suggested that agencies should collect start and end dates of diagnoses to allow for a more robust analysis and would give agencies the ability to determine when a diagnosis was applicable if the diagnosis changes during the report period.

Response:

We did not make changes to the final rule based on this comment as the response options of existing condition, previous condition, and does not apply will provide us an adequate history on the occurrence of a child's conditions at the federal level without the dates of diagnosis.

Section 1355.44(b)(14) School Enrollment, (b)(15) Educational Level, and (b)(16) Educational Stability

In paragraph (b)(14), the title IV-E agency must report whether the child is a full-time student at and enrolled in (or in the process of enrolling in) elementary or secondary education, or is a full or part-time student at and enrolled in post-secondary education or training, or college, or whether the child is not enrolled in any school setting. We made a minor revision to this data element in the final rule to include part-time students in the response options “post-secondary education or training” or “college.”

In paragraph (b)(15), the title IV-E agency must report the highest educational level from kindergarten to college or post-secondary education/training completed by the child as of the last day of the report period. We made a minor change to this data element in the final rule to add a response option of “GED” if the child has completed a general equivalency degree or other high school equivalent.

In paragraph (b)(16), the title IV-E agency must report if the child is enrolled or is in the process of enrolling in a new elementary or secondary school prompted by an initial placement after entry into foster care or a placement change during the report period and if so, reason(s) for the change in enrollment (paragraphs (b)(16)(i) through (b)(16)(vii)).

Comment:

In general, a national organization representing state child welfare agencies and states expressed concerns with state title IV-E agencies gathering data elements related to educational information because they stated it would create a burden for workers and would not result in accurate or useful data at the federal level since educational information, such as enrollment information, varies among jurisdictions and states. Three state commenters suggested forming a data exchange with the Department of Education instead of state title IV-E agencies collecting education information proposed through AFCARS.

Response:

We considered the comments concerned about the increased burden, however we are retaining the educational data elements related to school enrollment, educational level, and educational stability because, as we stated in the 2015 NPRM, these data elements address the requirements in section 471(a)(30) of the Act relating to an assurance for title IV-E eligible children being full-time elementary or secondary school students or completed secondary school, section 475(1)(C)(ii) of the Act relating to the child's health and education records and grade level performance while in foster care, and section 475(1)(G) of the Act relating to the case plan requirement to develop an educational stability plan for a child in foster care. We have learned through AFCARS Assessment Reviews and technical assistance that several title IV-E agencies already collect information on school enrollment, the highest level of education completed, and the reasons for changes in school enrollment. These data elements provide important information about this issue. As we explained in the 2015 NPRM, we believe that it is beneficial to collect information on the highest educational achievement of the child so that we can analyze trends in the relationship between a child's age and his or her educational achievement. Information on a child's recently completed grade level measures educational progress and aligns with statutory changes made by the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Pub. L. 110-351). 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. In reference to the suggestion for a data exchange with the Department of Education to collect a child's education information rather than collect it through AFCARS, we determined that approach would not yield consistent information. The Department of Education collects different and varied data from states, none of which is at the child level, as is the case with AFCARS. We will provide technical assistance as needed to title IV-E agencies to ensure accuracy of reporting.

Comment:

In response to paragraph (b)(14), a national organization representing state child welfare agencies and state title IV-E agencies expressed concerns about consistency in reporting school enrollment information due to variations in the definitions of elementary, secondary, post-secondary education or training, college, not school-age, and not enrolled among jurisdictions. They suggested removing the data element. Other states and national advocacy/public interest groups suggested reporting children enrolled in any “formal education program” to capture children in half and full-day kindergarten programs in

states where compulsory attendance begins at first grade.

Response:

We did not remove the requirement for agencies to report on student enrollment or make changes to the definitions of “elementary” or “secondary” based on the comments because the data element is based on the statutory requirement in section 471(a)(30) of the Act. That provision specifies that title IV-E agencies must assure that each child who has attained the minimum age for compulsory school attendance under state law and with respect to whom there is eligibility for a payment under the title IV-E plan is a full-time elementary or secondary school student or has completed secondary school. The provision also defines an “elementary or secondary school student” as “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 fulltime basis due to the medical condition of the child, which incapability is supported by regularly updated information in the case plan of the child.”

Comment:

In response to paragraph (b)(14), state title IV-E agencies and national advocacy/public interest groups suggested that agencies report “part-time” post-secondary education.

Response:

We agreed with the commenters to include “part-time” enrollment in addition to full-time and revised the definitions for the response options “post-secondary education or training” and “college” to include part-time enrollment. Now, the regulation specifies that enrollment in “post-secondary education or training” refers to full or part-time enrollment in any post-secondary education or training, other than an education pursued at a college or university and enrollment in “college” refers to a child that is enrolled full or part-time at a college or university. We understand that many older foster youth who are enrolled in post-secondary education or training or college attend part-time and therefore, we wish to capture both enrollment options for these older youth.

Comment:

In response to paragraph (b)(15), three states expressed concern with the proposal to report the highest educational level completed by the child as of the last day of the report period, noting that a child who is in kindergarten on the last day of the report period will be reported as “not school-age.”

Response:

We understand the commenter's concern, however, we are retaining the requirement for the agency to report the highest educational level completed by the child as of the last day of the report period. We are not seeking information on the child's current educational level. As we explained in the 2015 NPRM, we proposed to collect information on the child's highest educational level which measures educational progress and aligns with section 475(1)(C)(ii) of the Act relating to the child's health and education records and grade level performance while in foster care.

Comment:

In response to paragraph (b)(15), national advocacy/public interest groups suggested additions to paragraph (b)(15) that included, adding early childhood response options, adding general equivalency degree (GED) or other high school equivalent, and adding different levels of higher education to include one year and two year degrees/certificates.

Response:

We agree with the commenters who recommended adding GED as a response option, so we added it to the regulation which now reads: “Indicate “GED” if the child has completed a general equivalency degree or other high school equivalent.” We did not add response options recommended by other comments because we do not need the suggested detail about different levels of early childhood education or higher education for children in foster care at the national level.

Comments:

In response to paragraph (b)(16), a national organization representing state child welfare agencies and three state title IV-E agencies suggested removing the data element on educational stability stating that the data would be unreliable and not useful because the reasons for new school enrollments are often more complex than the six response options presented. They also suggested that a child's educational stability would be better assessed through a qualitative review and recommended that we collect only whether a change in a child's school occurred. One commenter was concerned that due to the complexity of this data element, workers would be likely to select “other,” reducing the accuracy of the responses.

Response:

We did not make changes to the regulation based on these comments because we continue to believe that a child's educational stability is an important issue and this data element is a step to gathering more information on this issue. As we stated in the 2015 NPRM, we seek this information because it will conform to section 475(1)(G) of the Act which is a case plan requirement to ensure the development of a plan for the educational stability of a child in foster care. We will provide technical assistance to title IV-E agencies as needed to ensure that this data element is reported accurately.

Comment:

In response to paragraph (b)(16), national advocacy/public interest groups recommend requiring agencies to report all school changes during a report period. They also recommended adding more data elements to gather information about whether or not school changes were in the best interests of a child, including whether the placement supports the child's permanency plan, whether it was a school discipline transfer, and whether there was a lack of living options near the original school.

Response:

We are retaining the language proposed in the 2015 NPRM in the final rule and did not add the response options recommended by the commenters for several reasons. We do not need details at the national level about multiple school changes during a report period or other more detailed reasons for a school change. As we indicated in the 2015 NPRM, 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. We believe the response options in paragraphs (b)(16)(i) through (b)(16)(vii) will allow us to identify those barriers and to determine ways to best address them.

Section 1355.44(b)(17) Pregnant or Parenting

In paragraph (b)(17)(i), the title IV-E agency must report whether the child is pregnant as of the end of the report period. We revised this data element in the final rule. In the 2015 NPRM, we proposed to require the agency to report whether the child is or was previously pregnant.

In paragraph (b)(17)(ii), the title IV-E agency must report whether the child has ever fathered or bore a child. We revised this data element in the final rule. In the 2015 NPRM, we proposed to

require the agency to report the number of children of the minor parent.

In paragraph (b)(17)(iii), the title IV-E agency must report whether the child and his/her child(ren) are placed together in foster care. We revised this data element in the final rule. In the 2015 NPRM, we proposed to require the agency to report the number of children living with the minor parent.

Comment:

Several states and a national organization representing state child welfare agencies generally objected to collecting information on children in foster care who are parents or pregnant for various reasons including: It is relevant in the NYTD (see 45 CFR 1356.83(g)(52)) not AFCARS; it will only be applicable to a small number of children and will not result in accurate reporting; it could impose an extensive data collection burden on case workers since there is no minimum age imposed on who the agency is to report, it is difficult to know a pregnancy begin date, and it would inappropriately apply to youth who are not of child-bearing age.

Response:

We require information on children in foster care who are pregnant or parenting to be reported in AFCARS because state-by-state data on this topic is required to be included in the annual report to Congress per section 479A(a)(7)(B) of the Act. The NYTD does not provide case level information on all children in foster care; therefore this type of data is not available in the NYTD. We revised the proposed data elements on pregnancy and minor parents and combined them into one data element that will meet the data needed in section 479A(A)(7)(B) of the Act for the report to Congress. We now require agencies to meet this requirement through one yes/no element, thus reducing the reporting burden for these elements. We moved away from our 2015 NPRM proposal that required agencies to report the total number of biological children either fathered or borne by the child because we do not need that level of information. Lastly, while we still require agencies to report whether the child in foster care is placed with his/her children, we limited the scope to any point during the report period, and not for each living arrangement. We will provide technical assistance to title IV-E agencies as needed to ensure that this data element is reported accurately.

Comment:

Several commenters suggested that agencies report more information about children in foster care who are pregnant or parenting, such as data on fathers and parenting responsibilities of youth in care, and situations when the child is placed separately in foster care from the minor parent.

Response:

We revised the data elements on children who are pregnant or parenting for purposes of meeting the data reporting requirement in section 479A(a)(7)(B) of the Act for the Annual Report to Congress. These suggestions would go beyond the data we need for that report and therefore, are not needed at the federal level.

Section 1355.44(b)(18) Special Education

In paragraph (b)(18), we require the title IV-E agency to report on the child's special education, status by indicating whether the child has an Individualized Education Program (IEP) or an Individualized Family Service Program (IFSP).

Comment:

A state title IV-E agency, the association representing state title IV-E agencies, and others recommended that we simplify data reporting regarding a child's special education status. They did not believe it would be useful to distinguish between an IEP and IFSP for comparison across states due to the variability across jurisdictions. Since only children from birth through age three will have an IFSP, the age of the child will indicate which type of plan is in place for the child. One state asked when the state should report about a child's IEP/IFSP.

Response:

We made revisions to the final rule in response to these comments. Agencies will be required to indicate “yes” or “no” as to whether the child has an IEP/IFSP. The agency reports this information as of the end of the report period.

Comment:

One state asked if children with an IEP for advanced placement should be included in the element.

Response:

Yes, if the IEP meets the definition in section 614(d)(1) of Part B of Title I of the IDEA and implementing regulations.

Comment:

Several commenters suggested additional data elements such as specifics on the types of special needs services provided to a child, whether a representative from the agency attended the child's IEP/IFSP meetings, and to provide an option to identify children who are receiving services and accommodations in compliance with section 504 of the Rehabilitation Act.

Response:

We did not make changes to the final rule in response to these comments because the overwhelming number of comments we received asked us to simplify this element. In addition, we wanted to note that it would not be appropriate for us to require agencies to report about a child's services under section 504 of the Rehabilitation Act as it is a civil rights statute which prohibits discrimination against individuals with disabilities, which we did not propose in the 2015 NPRM. This data element relates to special education as defined in 20 U.S.C. 1401(29), which means specifically designed instruction, at no cost to the parent(s), to meet the unique needs of a child with a disability (80 FR 7151, Feb. 9, 2015).

Section 1355.44(b)(19) Prior Adoption

In paragraph (b)(19), the title IV-E agency must report whether the child experienced a prior legal adoption, including any public, private, or independent adoption in the United States or adoption in another country, and a tribal customary adoption, prior to the current out-of-home care episode. If so, in paragraph (b)(19)(i), the title IV-E agency must report the date it was finalized, and in paragraph (b)(19)(ii), the title IV-E agency must report whether the child's prior adoption was an intercountry adoption.

Comment:

Several states, a national organization representing state child welfare agencies, and others objected to us collecting data on all of the child's prior adoptions including the detailed information on the type of the prior adoption, and where the child was previously adopted. The commenters concerns were that agencies capture information on prior adoptions ad hoc based on the willingness of the person to provide the information; that this level of detail may not exist; that the reliability of collecting every prior adoption is questionable; that it would be overly burdensome to research all of the child's prior adoptions and questioned the usefulness of the information and our authority to collect it. Several states suggested instead that we collect only the date of the most recent prior adoption and whether or not the child was adopted within the state.

Response:

We were persuaded by the objections noted about these data elements and revised the final rule to address some of the concerns We are statutorily mandated to collect information about the number of children who enter foster care after an adoption was legalized per section 479(d) of the Act. As such, we did not remove the prior adoption data elements entirely, but revised them to require the title IV-E agency to report information for the most recent prior adoption only. We also revised the data element on the type of each prior adoption to instead require the title IV-E agency to report if a prior adoption was an intercountry adoption and revised the name of the

data element. This is to address reporting on disrupted intercountry adoptions required under section 422(b)(12) of the Act which is currently provided in the state's annual title IV-B plan update. We removed the data element proposed in the 2015 NPRM asking for the jurisdiction name of each prior adoption.

Comment:

Associations representing tribal interests suggested including customary tribal adoptions to bring awareness and data to this issue.

Response:

We agree and revised the final rule to include that title IV-E agencies report whether the child experienced a prior legal adoption, including a tribal customary adoption, before the current out-of-home care episode.

Comment:

National advocacy/public interest groups suggested that we collect more information on prior adoptions, such as the child's birth country, whether the previous adoption assistance agreement was terminated and the previous adoptive parents are still receiving subsidies, whether the previous adoption was open or closed, the reasons why the adoption disrupted/dissolved, and categorizing adoption dissolutions and disruptions separately.

Response:

We considered these comments, but did not make any changes to the final rule based on this comment and instead reduced the information required on prior adoptions to collect information needed to satisfy statutory requirements in section 479(d) and 422(b)(12) of the Act. In addition, we took into consideration the overwhelming response from state agencies that our proposal to collect more details on prior adoptions would be burdensome and outweighs its utility.

Comment:

States questioned how they would report on prior adoptions if they did not know or could not ascertain the information. They were concerned about missing data counting towards a penalty.

Response:

We have revised the requirements for reporting on prior adoptions so that the agency only has to report the most recent prior adoption. As such, we do not expect that agencies will have difficulty in ascertaining whether the child was adopted prior to entering foster care. If the information is unknown because the child was abandoned, then the title IV-E agency would report “abandoned” for paragraph (b)(19).

Section 1355.44(b)(20) Prior Guardianship

In paragraph (b)(20)(i), the title IV-E agency must report whether the child experienced a prior legal guardianship and if so, to report the date that the prior legal guardianship became legalized in paragraph (b)(20)(ii). We revised our 2015 NPRM proposal to only require the title IV-E agency report the date of the most recent prior guardianship and eliminated reporting on the type and jurisdiction of each prior guardianship.

Comment:

Several states objected to us collecting all of the child's prior legal guardianships, and the detailed information on the type of the prior guardianship and where the child had a prior legal guardianship. The commenters concerns were that agencies capture information on prior guardianships ad hoc based on the willingness of the person to provide the information; that this level of detail may not exist; that the reliability of collecting every prior guardianship is questionable; that it would be overly burdensome to research all of the child's prior guardianships; and questioned how useful the information is and our authority for collecting it.

Response:

We were persuaded by the objections noted and revised the final rule to address the concerns about reporting each prior legal guardianship and the type and jurisdiction of each prior guardianship. We are statutorily mandated to collect information about the number of children who enter foster care after a legalized guardianship per section 479(d) of the Act. As such, we did not remove the prior legal guardianship data element entirely, but revised it to require the title IV-E agency to report the date of the most recent prior legal guardianship only if the child experiences a prior legal guardianship. In addition, we removed the data elements proposed in the 2015 NPRM on the type and jurisdiction of each prior guardianship.

Section 1355.44(b)(21) Child Financial and Medical Assistance

In paragraph (b)(21), we require the title IV-E agency to report whether the child received financial and medical assistance, other than title IV-E foster care maintenance payments. If so, in paragraphs (b)(21)(i) through (b)(21)(xiii), the title IV-E agency must indicate whether each type of federal or state/tribal assistance applies: SSI or Social Security benefits; Title XIX Medicaid; Title XXI SCHIP; State/Tribal adoption assistance; State/Tribal foster care; Child support; Title IV-E adoption subsidy; Title IV-E guardianship assistance; Title IV-A TANF; Title IV-B; SSBG; Chafee Foster Care Independence Program; Other.

Comment:

States, a national organization representing state child welfare agencies, and others opposed our proposal to require the title IV-E agency to report specific federal assistance per diem payment amounts for each of the child's living arrangements and expressed concern about the increased burden and potential inaccuracies in reporting the data. One commenter indicated that collecting this information would be burdensome for counties.

Response:

In response to these concerns, we were persuaded to revise the financial assistance data elements by removing the data element related to federal assistance per diem payment amounts for every living arrangement and consolidated the financial and medical assistance response options into one data element. We must still collect the extent and nature of assistance per section 479(c) of the Act; therefore, in paragraph (b)(21) we require title IV-E agencies to report whether or not the child is receiving each of 13 types of state/tribal and federal financial and medical assistance during the report period.

Comment:

One commenter questioned whether this data element includes a situation where a child returns home but remains in the agency's custody and whether the data element applies to financial and medical assistance that the child received during the reporting period but prior to coming into the agency's custody.

Response:

The title IV-E agency must report the assistance that applies beginning when the child enters the reporting population and continues until the child is no longer in the agency's placement and care responsibility. Therefore, yes the agency must report the assistance that applies if the child is placed at home and remains under the placement and care responsibility of the title IV-E agency.

Section 1355.44(b)(22) Title IV-E Foster Care During Report Period

In paragraph (b)(22), we require the title IV-E agency to report whether a title IV-E foster care maintenance payment was paid on behalf of the child at any point during the report period. We received no comments on this data element.

Section 1355.43(b)(23) Through (b)(25) Siblings

In paragraph (b)(23), we require the title IV-E agency to report the total number of siblings that the child under the placement and care responsibility of the title IV-E agency has, if applicable.

In paragraph (b)(24), we require the title IV-E agency to report the number of siblings of the child who are in foster care as defined in section 1355.20.

In paragraph (b)(25), we require the title IV-E agency to report the number of siblings of the child who are in the same living arrangement as the child, on the last day of the report period.

Comment:

In general, several states and a national organization representing state child welfare agencies agreed that the issue of sibling placement is important at the practice level when planning for children, but is better captured as a qualitative data set. Commenters noted it may not be possible for the caseworker to know whether the child has siblings and if so how many, because agencies encounter multiple overlapping sibling groups, uncertain parentage, and mixed biological, legal, and step-parent relationships. They had concerns and questions about the 2015 NPRM proposal on siblings (which were in the sections 1355.43(e) and 1355.44 of the 2015 NPRM) including the definition of siblings, reporting sibling record numbers, and the reliability and consistency of the data. They commented that it would not provide meaningful valid information for national review, pointed out that there are many varied reasons for siblings not being be placed together, and that our proposal would not take into account the complexity of what may constitute a family in the eyes of a child. Some states questioned the value of trying to match sibling record numbers and believe this requirement is onerous and of limited value. Some commenters recommended that if data on siblings must be gathered in AFCARS, we should collect the number of siblings of the child, the number of siblings who are also in care, and the number of siblings who are in the same placement with the child. Another commenter recommended that we collect the number of siblings placed with the child at the start of the placement and at any point during the child's time in this placement to determine if the child was placed with siblings when initially removed from home.

Response:

We carefully reviewed the comments and suggestions and while we understand the concerns raised, we determined that it is important to continue require title IV-E agencies to report information about siblings. We acknowledge that there are many issues that make collecting data on siblings difficult. As we noted in the preamble to the 2015 NPRM, section 471(a)(31)(A) of the Act requires title IV-E agencies to make reasonable efforts to place siblings removed from their home in the same foster care, kinship guardianship, or adoptive placement, unless such a placement is contrary to the safety or well-being of any of the siblings. However, we were persuaded to revise the sibling data elements to address commenter concerns and simplify reporting. We addressed one of the major concerns raised by commenters by removing the data elements requiring the agency to report the sibling's child record numbers, which indicated which siblings were or were not placed with the child. Now, title IV-E agencies must report the total number of siblings of the child, the number of siblings that are also in foster care as defined in section 1355.20, and the number in the same living arrangement on the last day of the report period. We recognize the frequent movement of children makes it difficult to capture sibling information, so we will only require reporting as of the last day of the report period for the data element on siblings who are in the same living arrangement.

Comment:

States asked for a clearer definition of sibling and questioned, for example whether to report if the child in foster care has step-siblings with which the child has no contact.

Response:

We define a sibling to the child as his or her brother or sister by biological, legal, or marital connection. We acknowledge that title IV-E agencies may confront issues that may make collecting data on siblings difficult; however, we are not providing further specifics on the definition of sibling. The definition is broad and would include reporting the total number of step-siblings which constitutes a legal connection.

Section 1355.44(c) Parent or Legal Guardian Information

In paragraph (c), the title IV-E agency must report information on the child's parent(s) or legal guardian(s). In the 2015 NPRM we proposed to require the title IV-E agency to report the date of the first judicial finding that the child has been subject to child abuse or neglect, if applicable. We received comments from states requesting that we remove this data element stating that is excessive information, has limited value in measuring outcomes, and it does not add substantive value to the data file. States also questioned the usefulness of this data element due to varying state practices and believed it would be best left to a qualitative review process to det

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