# Runaway and Homeless Youth > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2016-30241 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** December 20, 2016 - **Citation:** 81 FR 93030 ## Text DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families 45 CFR Part 1351 RIN 0970-AC43 Runaway and Homeless Youth AGENCY: Family and Youth Services Bureau (FYSB), Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF), Department of Health and Human Services (HHS). ACTION: Final rule. SUMMARY: This final rule reflects existing statutory requirements in the Runaway and Homeless Youth Act and changes made via the Reconnecting Homeless Youth Act of 2008. More specifically, the rule establishes program performance standards for Runaway and Homeless Youth grantees providing services to eligible youth and their families. Revisions have been made to the rule regarding additional requirements that apply to the Basic Center, Transitional Living, and Street Outreach Programs, including non-discrimination, background checks, outreach, and training. Furthermore, the rule updates existing regulations to reflect statutory changes made to the Runaway and Homeless Youth Act, and updates procedures for soliciting and awarding grants. This final rule makes changes to the proposed rule published on April 14, 2014, and is in response to public comments recommending ways to improve the rule. DATES: This final rule is effective January 19, 2017. However, compliance with the new performance standards is not required until the beginning of the next budget period after promulgation of this final rule. FOR FURTHER INFORMATION CONTACT: Christopher Holloway, (202) 205-9560 (not a toll-free call). Deaf and hearing impaired individuals may call the Federal Dual Party Relay Service at 1-800-877-8339 between 8 a.m. and 7 p.m. Eastern Time. SUPPLEMENTARY INFORMATION: I. Statutory Authority This final rule is published under the authority granted to the Secretary of Health and Human Services by the Runaway and Homeless Youth Act (Title III of the Juvenile Justice and Delinquency Prevention Act of 1974), 42 U.S.C. 5701 et seq. as amended by the Reconnecting Homeless Youth Act of 2008 (Pub. L. 110-378). Specifically, under 42 U.S.C. 5702, “the Secretary of Health and Human Services . . . may issue such rules as the Secretary considers necessary or appropriate to carry out the purposes of this subchapter.” II. Background The Runaway and Homeless Youth Act (“the Act”) authorizes three major grant programs administered by the Family and Youth Services Bureau (FYSB), Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF), in the Department of Health and Human Services (HHS). These programs support local efforts to assist youth who have run away or are homeless. The Basic Center Grant Program (hereafter referred to as the Basic Center Program) funds grants to community-based public and nonprofit private agencies (and combinations of such entities) to establish and operate local centers to provide services for runaway and homeless youth and for the families of such youth. Services provided include the provision of outreach, crisis intervention, temporary shelter, counseling, family unification, and aftercare services to runaway and homeless youth and their families. Basic Center projects generally serve youth under 18 years of age and can provide up to 21 days of shelter. The Transitional Living Grant Program (hereafter referred to as the Transitional Living Program) provides grants to public and private organizations to establish and operate transitional living youth projects for homeless youth, including for community-based shelter including group homes, host family homes, and supervised apartments for youth, ages 16 to under 22, who cannot safely live with their own families. Transitional Living projects provide a safe, stable, and nurturing environment for up to 21 months. Young people who have not yet reached their 18th birthday at the end of the 21-month period may continue to receive services until they turn 18. Services include counseling in basic life skills, interpersonal skill building, educational advancement, job attainment skills, and physical and mental health care. These services are designed to help youth who are homeless develop the skills necessary to make a successful transition to self-sufficient living. The Transitional Living Program also funds Maternity Group Homes, which are specifically designed to meet the needs of pregnant and parenting youth. The Sexual Abuse Prevention Program (hereafter referred to as the Street Outreach Program) provides grants to nonprofit private agencies for street-based outreach and education, including treatment, counseling, provision of information, and referrals for runaway, homeless, and street youth 21 years and younger who have been subjected to or are at risk of being subjected to sexual abuse, prostitution or sexual exploitation. The Act also authorizes additional activities conducted through grants, including grants for research, evaluation, and service projects; grants for a national communications system to assist runaway and homeless youth in communicating with their families and service providers; and grants for technical assistance and training. This final rule covers all of these activities. The Reconnecting Homeless Youth Act of 2008 (hereafter referred to as “the 2008 Act”) (Pub. L. 110-378) reauthorized the Runaway and Homeless Youth Act (hereafter referred to as “the Act”) through federal fiscal year (FY) 2013, and made a number of changes to the Act, including a requirement for the establishment of performance standards. Specifically, section 386A of the 2008 Act, Performance Standards, requires that: (1) HHS issue rules that specify performance standards; (2) HHS consult with grantees and national nonprofit organizations concerned with youth homelessness in developing those standards; and (3) HHS integrate the performance standards into the HHS processes for grant making, monitoring, and evaluation for the three major grant programs under the Act. We have already implemented elements of these statutory mandates through funding opportunity announcements, technical assistance and training, and data collection. This final rule allows us to complete implementation of these legislative requirements. In addition, it will bring the program's codified regulations, last updated August 17, 2000 (65 FR 50139), into conformity with existing statutory provisions, the administrative and managerial procedures we already use in accordance with the 2008 Act, and previous statutory changes. We intend to provide technical assistance to grantees that focuses on effective implementation of these performance standards, and to implement them as new budget periods begin, after promulgation of this final rule, rather than in the middle of an existing budget period. III. Consultation and the Development of the Final Rule In keeping with the requirements of the 2008 Act, the Family and Youth Services Bureau (FYSB) sought input from grantees and other stakeholders prior to the development of the proposed rule. In April 2009, FYSB conducted a consultation forum that brought together forty-four individuals including subject experts, technical assistance providers, Runaway and Homeless Youth (RHY) grantees, federal staff, persons with extensive program monitoring experience, and national, regional and statewide youth servicing organization representatives. FYSB also obtained stakeholder perspectives and other information to inform the proposed rule in a number of additional ways. Since 2008, we have conducted national conferences bringing together all stakeholder groups and allowing for broad, informal exchanges of views. One such conference, the 2008 Runaway and Homeless Youth Grantee Conference was attended by 442 participants (including representatives from 252 grantee organizations) to share ideas, promising approaches, and best practices. Participants met in over 30 different workshops addressing both universal issues and specific programmatic needs of the three major RHY programs. Through the Runaway and Homeless Youth Training and Technical Assistance Centers, we have conducted an extensive training, technical assistance, and monitoring effort aimed not only at assisting grantees, but also at obtaining their feedback on operational issues. In tandem with these efforts, we conducted an in-depth review of existing regulatory and sub-regulatory issuances and developed a comprehensive set of on-site review materials, in use since February 2009. These consultative processes provided valuable input that we used in formulating the performance and procedural standards. Importantly, the input we received emphasized that: • The standards should promote an integrated, holistic approach to service delivery. • The standards should be responsive to the complex social identities ( i.e., race, ethnicity, nationality, religion/spirituality, gender identity/expression, sexual orientation, socioeconomic status, disability, language, beliefs, values, behavior patterns, or customs) of clients. • The standards should serve as models for program quality and encourage programs to strive for excellence. • The standards should achieve a balance between clarity and precision of regulatory intent and regulatory flexibility so that programs can be most responsive to local needs, settings, and circumstances. • The standards should place emphasis on family-focused aspects of the program by strengthening links with local community providers, and helping families identify and address individualized goals. • Standards of any kind—whether performance or procedural—should facilitate rather than impede local flexibility in creating and operating effective programs that respond to local needs and priorities. • Standards should not unnecessarily impose burdensome requirements that would divert local resources away from service. We retained these principles in developing the final rule. As we stated in the proposed rule, we believe that “Regular measurement of progress toward specified outcomes is a vital component of any effort at managing-for-results.” (Harry P. Hatry, Performance Measurement, Urban Institute Press, 2006). However, we recognized that effective, workable, and successful performance standards are extremely difficult to formulate and often need amending over time. Among the difficulties encountered are: (1) Some of the most important goals may be qualitative rather than quantitative; (2) near-term results may not correctly signal long-term effects; (3) measurement and appraisal may reduce the resources available for services; and (4) local circumstances may vary and achieving a lower absolute result in some settings may actually reflect superior performance over other settings because difficulties were greater. Despite these difficulties, we have increasingly incorporated performance measures and standards into the Runaway and Homeless Youth Program's ongoing operations to drive program improvement and help assure accountability. The standards and measures in this rule are appropriate, realistic, and consistent with the underlying complexity of the problems and processes involved in serving homeless and runaway youth. In the proposed rule preamble, we stated that we welcomed comments on whether our proposed standards struck the proper balance in meeting the objectives stated above, including measuring the most important program goals that are feasible to measure, preserving flexibility to grantees, and minimizing unnecessary burden. We asked for suggestions, particularly those supported by research or evaluative evidence, for improvements in the proposed standards. To assist in such comments, we provided specific regulatory text that commenters could review and suggest changes. As described later in this preamble, we received useful and detailed comments from individuals, providers, advocacy groups, government agencies, and others that have assisted us in making the decisions reflected in this final rule. As a result of the consultative and rulemaking process, this final rule codifies a targeted number of process and procedural requirements in order to minimize burden to grantees and to provide grantees flexibility in meeting their performance standards and in dealing with unique circumstances in their communities. This final rule reflects that there are many effective practices that are best handled through technical assistance and training rather than established as regulatory standards. We will work closely with our grantees in implementation of this final rule through our training and technical assistance activities to ensure they thoroughly understand the new standards and reporting requirements. IV. Scope of the Final Rule This final rule establishes Runaway and Homeless Youth Program Performance Standards to help assess the quality and effectiveness of the Runaway and Homeless Youth Program nationally by providing indicators of successful outcomes for youth. The performance standards will be used to monitor individual grantee performance in achieving the purposes of the Act. Program projects will also be subject to other requirements including other applicable regulations ( e.g., civil rights regulations), and those cited in funding opportunity announcements. This final rule also makes largely technical changes to existing program rules to conform to current law and to correct outdated provisions. Equally important, it revises our regulatory provisions on making awards to reflect the performance standards and to reflect onsite review and monitoring procedures that have been in place for a number of years. This final rule is effective 30 days after publication in the Federal Register ; however, compliance with the new performance standards will not be required until the beginning of the next budget period (October 1) after the effective date of the final rule. This will allow existing grantees time to come into compliance with the new standards, and provide time for us to assist grantees, and avoid confusion that may result from changing standards in the middle of budget periods. To assist grantees, we will provide them with guidance on best practices for implementing the standards. We will also conduct additional technical assistance to help grantee agencies understand and implement the new standards. We intend the final rule to complement our other efforts to strengthen Runaway and Homeless Youth grantee monitoring and to improve the overall program. V. Summary of Public Comments We received 72 responsive and unique comments or sets of comments on the proposed rule, not including comments that were word-for-word identical. Multiple organizations and individuals endorsed several of these comment sets, and the total number of commenting individuals and organizations was about 300. About a dozen comments expressed overall support for the rule and made no specific suggestions for change. Without exception, the substantive comments reflect an understanding of the many problems affecting runaway and homeless youth, and of the many challenges that arise in administering programs for these youth. This understanding was evident in not only comments from advocacy groups and other organized commenters, but also the comments from individual service providers and from concerned individuals. We were able to accommodate many, but not all, of the recommendations in these comments. In some cases, the statute gives us little or no flexibility to accept commenter recommendations. In other cases, we agree that the comment raises an important issue, but not that the issue can or should be addressed through this regulation. Many recommendations in the comments address issues that we believe are best addressed either in implementation guidance, in funding opportunity announcements, or in individual decisions by service providers themselves. Other issues raised involved the respective roles of federal and state governments, or of other agencies or programs involved in the lives of these youth ( e.g., housing programs, juvenile justice system). In our response to each issue raised by commenters, we address these factors insofar as they affect the decision in the final rule. These exceptions aside, we accepted many dozens of suggested changes in whole or in part, and believe that the comments were helpful in improving the final rule. VI. Section-by-Section Discussion of the Regulatory Provisions, Issues, and Comments We received a number of comments that did not address a particular section of the proposed rule either directly or by inference. We address those first. Comment: One commenter said that the law needs to make room for faith-based programs. Response: We did not make any changes to the final rule in response to this comment because the existing ACF Policy on Grants to Faith-Based Organizations already establishes ACF's commitment to partnering with faith-based organizations. More specifically, the ACF Policy on Grants to Faith-Based Organizations states the following: “This administration is committed to providing the full range of legally permissible services to people who need them, and to doing so in a timely fashion and in a manner that respects the diverse religious and cultural backgrounds of those we serve. At the same time, we also are committed to finding ways for organizations to partner with us even if they object to providing specific services on religious grounds.” The full policy can be found here: http://www.acf.hhs.gov/acf-policy-on-grants-to-faith-based-organizations. Comment: One commenter pointed out that our background preamble discussion of transitional housing being a “long-term environment,” in light of the 21-month period for which such housing can be provided in the Transitional Living Program as compared to the 21-day period allowed in the Basic Center Program, is not seen as a long-term solution in housing programs administered by HUD. Response: We agree that the Transitional Living Program services are not permanent housing solutions, or even long-term when compared to the housing options that HUD offers. As indicated throughout the proposed and final rules, one of the major priorities of the RHY Program is, whenever reasonably and safely possible, to return youth to their family homes for support until they can find their own longer-term solutions, or, when reunification is not possible, to assist youth in establishing more permanent arrangements. Within the context of the Continuum of Care Program, as defined by HUD, and its housing and service structure, TLP is considered transitional housing and BCP is considered emergency shelter. Neither is considered to be a permanent placement. We have therefore deleted references to “long-term” transitional living services throughout this rule. Comment: One commenter asked that we add a requirement that youth served by these programs be actively involved in developing these services, through meaningful leadership positions and involvement in policy development and evaluation. Research supporting this position was provided. Response: The idea is worth future consideration. We think it would likely present concerns if established as a regulatory requirement at this point in time, in part because it was not presented as a proposal for the public, including stakeholders, to comment on. Subpart A. Definition of Terms The significant terms in § 1351.1 reflect current statutory terminology and operating practice. We proposed to revise a number of existing definitions, to add a number of definitions, to delete a few definitions that we do not believe are useful or necessary, and to change the format of the definitions. We requested comment on each new or revised definition. The additions and revisions are intended to reflect both recent changes to the statute and important practices in the administration of the program. The definitions section applies to all grants under the Act. Each individual definition only applies where it is applicable to each type of grant. We received comments on many, but not all, of the definitions. We are leaving unchanged and as proposed the definitions on which we received no comments. These include the following terms: Act, client, drop-in center, drug abuse education and prevention services, runaway and homeless youth project, short-term training, state, supervised apartments, and technical assistance. Act We received no comments on this definition and have retained it in this final rule. Aftercare We proposed to revise the definition of Aftercare to read: `Aftercare means additional services provided beyond the period of residential stay that offer continuity and supportive follow-up to youth served by the program.' Comment: We received one comment on this definition. That comment suggested that we not limit this term to residential care, pointing out that aftercare could apply to non-residential services. The commenter also suggested adding a reference to the family. Response: The only two programs affected by this regulation that would have an aftercare component are residential programs (BCP and TLP), so it is not appropriate to expand the aftercare definition to programs that are not residential. Regarding the request to add references to families receiving aftercare services, our statutory mission under § 312(b)(5) of the Act includes a provision to “develop an adequate plan for providing counseling and aftercare services to such youth, [and] for encouraging the involvement of their parents or legal guardians incounseling . . . ” We interpret the statute as intending the aftercare provision to be provided for youth specifically but we do encourage parental involvement. Therefore, we have retained the proposed rule language in this final rule. Area We proposed to delete the existing regulatory definition of “area” in the NPRM because a precise definition is not required for the purposes of the program. Receiving no comments, we have deleted it in this final rule. Background Check We received a dozen unique comments on this definition and/or on the related requirement in proposed § 1351.20(l), which is numbered § 1351.23(j) in this final rule, (requirements that apply to all Runaway and Homeless Youth Program local services grants) that all grantees “shall conduct complete background checks on all employees and volunteers.” These comments represent in total over a hundred individuals and organizations. Most of the comments argued that the definition and/or requirement as worded were too broad and would be both expensive, time consuming (weeks for responses from some states), and disruptive of program operations. Comments: Several comments objected to making this a national background check, rather than one focused on state records. These comments argued that this would be both burdensome and time consuming. One commenter suggested adding consultants as individuals who should be subject to background checks. Several commenters objected to subjecting volunteers to the same check as employees ( e.g., checking employment records and driving records for volunteers). Other commenters felt that the proposed definition was ambiguous as to what was required for volunteers' background checks. In particular, several commenters pointed out that many volunteers may be one-time attendees at particular events, that some staff and volunteers may not work directly with youth, and that some volunteers may not have unsupervised contact with youth; these commenters recommended exemptions in cases such as these. As examples, volunteers might be used to cook hot meals on holidays, might be guest speakers, or might visit one time as a member of a community group. Several commenters asked whether the driving record check would apply only to those who transport youth. One commenter pointed out that some kinds of criminal backgrounds do not pose serious risk of harm to the grantee or clients, and asked for clarification that employment of such persons (who might have committed minor crimes as youth) not be prohibited. Several commenters noted that there was ambiguity as to what kind of national check might be required and several pointed out that at least one state performed an out-of-state check only for states in which the person has recently lived. Response: In order to provide clarity, we have revised the final rule to address many of the above comments. We agree that the proposed rule needed more clarity regarding what kinds of background checks are required. As a result, we have revised the final rule at § 1351.23(j) to clarify that grantees shall conduct a background check on all employees, contractors, volunteers, and consultants who have regular and unsupervised private contact with youth served by the grantee, and on all adults who reside in or operate host homes. We do not agree with the comments that request background checks only include state records. Both state and national records are necessary for youth safety. However, we did revise the final rule to provide clarity on which background checks are required. We did not address background check fees in this rule. We understand programs may bear costs associated with background checks and we encourage programs to use the resources available to them and consider ways to allocate funds differently to cover these costs. In the interest of youth safety and to be mindful that all parties have an obligation to exercise due diligence, our proposed definition and related requirements for background checks have been revised in the final rule. We have revised the definition of background check for employees, consultants, contractors, and employment applicants to include: State or tribal criminal history records (including fingerprint checks); Federal Bureau of Investigation criminal history records including fingerprint checks, (to the extent FSYB determines this to be practicable and specifies the requirement in a Funding Opportunity Announcement that is applicable to a grantee's award); a child abuse and neglect registry check (to the extent FSYB determines this to be practicable and specifies the requirement in a Funding Opportunity Announcement that is applicable to a grantee's award); and a sex offender registries check. The plans, procedures, and standards must identify background check findings that would disqualify an applicant from consideration for employment to provide services for which assistance is made available in accordance with this part. To further protect children's safety, in § 1351.20(l), which is numbered § 1351.23(j) in this final rule, we also require that programs document the justification for any hire where an arrest, pending criminal charge, or conviction is present. Budget Period In the NPRM, we proposed defining the term Budget Period as “ Budget period means the interval of time into which a multi-year period of assistance (project period) is divided for budgetary and funding purposes. ” We received no comments on this definition. However, this definition was used only in proposed § 1351.34, which, as described below, has been removed from this final rule. Therefore, we are also removing this definition from the final rule. Case Management Case management is a central concept in serving client youth, and we proposed to add a definition to read: Case management means assessing the needs of the client and, as appropriate, arranging, coordinating, monitoring, evaluating, and advocating for a package of services to meet the specific needs of the client. Comment: We received one comment on this definition, asking that we add the phrase “identification of needs.” Response: In the interest of clarity we have made the requested change, and have also included new language making clear that identifying the needs of a client should be done in consultation with the client. Client We did not receive any comments on this definition and therefore have retained the proposed definition in the final rule. Congregate Care We proposed congregate care to read: Congregate care means a shelter type that combines living quarters and restroom facilities with centralized dining services, shared living spaces, and access to social and recreational activities. Comments: We received two comments on the definition of congregate care suggesting that it too closely aligned with the definition of family home. Response: We agree with the comments and have adjusted the definition to add the qualification that a congregate care shelter is not a family home. Contact Contacting homeless youth is a core function of the entire program, and the primary function of the Street Outreach Program. We proposed to define Contact to read: Contact means the engagement between Street Outreach Program staff and homeless youth in need of services that could reasonably lead to shelter or significant harm reduction. Closely related to this definition, and dependent on this definition, is § 1351.32, where we proposed as a performance measure for the Street Outreach Program the total number of contacts made by the project, giving the projects credit for repeatedly reaching youth. Comment: We received twelve comments on, either, the definition of contact, the performance measure, or both. Some comments represented multiple individuals and organizations, about 200 in total. Several of these comments argued that the definition should include explicit references to locations frequented by homeless youth. Most argued it should be broadened to include street youth at risk of homelessness or runaway status, not just those already in those situations, pointing out that the statute uses the term “at risk” in describing the purpose of the Street Outreach Program. Response: We appreciate these comments and have made most of the suggested changes. Although the multiple settings in which youth might be contacted are implicit in the proposed definition, we agree that it adds clarity to list some of them. We agree that “at risk” youth should count as contacts and are adding this to the definition. Accordingly, we have revised the definition to say that Contact includes “youth who are at risk of homelessness or runaway status or homeless youth in need of services that could reasonably lead to shelter or significant harm reduction” and have added a sentence saying, “[t]his contact may occur on the streets, at a drop-in center, or at other locations known to be frequented by homeless, runaway, or street youth.” Core Competencies of Youth Worker Core competencies are essential in providing services that lead to improved outcomes for clients. We proposed to add a definition for core competencies of youth worker to read: Core competencies of youth worker means the ability to demonstrate skills in six domain areas: (1) Professionalism (including, but not limited to, consistent and reliable job performance, awareness and use of professional ethics to guide practice), (2) applied positive youth development approach (including, but not limited to, skills to develop a positive youth development plan and identifying the client's strengths in order to best apply a positive youth development framework), (3) cultural and human diversity (including, but not limited to, gaining knowledge and skills to meet the needs of clients of a different race, ethnicity, nationality, religion/spirituality, gender identity/expression, sexual orientation), (4) applied human development (including, but not limited to, understanding the needs of those at risk and with special needs), (5) relationship and communication (including, but not limited to, working with clients in a collaborative manner), and (6) developmental practice methods (including, but not limited to, utilizing methods focused on genuine relationships, health and safety, intervention planning). Comment: We received six unique comments on the definition of core competencies of youth workers. One commenter expressed the hope that items number (3) and (4) mean to address and include lesbian, gay, bisexual, transgender, and/or questioning (LGBTQ) youth. Another commenter recommended that item number (6) add the importance of working within an “ecological framework” that understands family and community and the role of the worker and client within that framework. Two commenters expressed the hope that youth workers will progress toward becoming certified by either state or national certifying bodies, and are guided in their professional development by competency domains and manuals developed by a national certifying body. One commenter said that all staff need not be trained in all competencies. Response: We appreciate these comments and have made no changes in the final rule. The details of skills development among youth workers within the domain areas we identify will depend on education, training, and on-the-job experience, much of which will be unique to individual workers and their work assignments. We expect that such education and training will often utilize the perspectives and materials mentioned in the comments, but see no reason to add such detail in a codified rule. Regarding lesbian, gay, bisexual, transgender or questioning (LGBTQ) youth, we do intend the core competencies of youth workers to address and include the needs of these youth, and believe that this is clear in the standards as written. As for the comment on not all staff needing training in all competencies, we agree. We address this in the final text of § 1351.23. We expect youth workers to complete core competency training in order to effectively fulfill their job responsibilities working with runaway and homeless youth. We do not expect that every staff person to be trained in core competencies, but all staff members who work directly with youth should receive training sufficient to meet the stated core-competencies of youth workers. Counseling Services We proposed to revise the definition of counseling services to include runaway prevention and intervention related services as follows: Counseling services means the provision of guidance, support, referrals for services including, but not limited to, health services, and advice to runaway or otherwise homeless youth and their families, as well as to youth and families when a young person is at risk of running away. These services are designed to alleviate the problems that have put a youth at risk of running away or contributed to his or her running away or being homeless. We received six unique comments on our proposed revision, several of them endorsed by many individuals or organizations. Comment: One commenter asked why the first sentence of the definition didn't directly say homeless. Response: We think that the definition as worded, which includes the phrase “runaway or otherwise homeless youth”, clearly includes homeless youth, and have not made this change. Comment: One commenter said that counseling services should explicitly include therapeutic services, including trauma-informed psychotherapy. Relatedly, two other comments recommended removing the word “advice” and replacing it with “clinical services” to include mental health counseling and psychotherapy. Response: We do not agree with the comments suggesting that we require therapeutic or clinical mental health care services in place of “advice.” The Act does not authorize grantees to provide health care services directly and our grants do not include funding for professional health care providers. Our grantees' counseling services are intended to provide both advice and referrals when mental health services are needed (see our following discussion of health care services). Accordingly, we have not made this change. Comment: Two commenters said that many youth were “forced out” of family homes because of their sexual orientation or gender identity, that a term such as “where appropriate and in the best interest of youth” should condition the language concerning advice and counseling for families, and that the word “families” should include “individuals identified by such youth as family” (to include legally unrelated individuals with whom youth have “strong, supportive relationships”). These comments pointed out that parental abandonment or rejection is often the cause of runaway or homeless status among LGBTQ youth. Response: We agree with the commenters who focused on the point that youth are often “forced out” of family homes. As to advice and counseling, the Act expresses a strong preference for reuniting youth and their families, and therefore, we expect grantees to work towards reunification as appropriate and safe for youth. Sometimes it will be impossible to locate families; the youth or family or both may refuse counseling; or some other impediment to reunification may arise. Grantees are not expected to achieve the impossible. Taking into consideration the statute and this comment, we have added language that counseling should be provided “as appropriate.” We have also added the phrase “in consultation with clients” to emphasize that these services and advice must reflect the unique situation that faces each particular youth. Furthermore, based on a comment received urging ACF to specifically prohibit conversion therapy in § 1351.19 of the proposed rule we are adding a sentence to the definition of “counseling services” to specifically exclude conversion therapy and referrals to conversion therapy by adding language at the end of the definition that says “[a]ny treatment or referral to treatment that aims to change someone's sexual orientation, gender identity or gender expression is prohibited.” This change is described further in the comments to § 1351.19 of the proposed rule in this preamble. Demonstrably Frequented by or Reachable We proposed to delete the existing regulatory definition of “Demonstrably frequented by or reachable”. The definition is unnecessary. No commenters raised any concern over this change and this final rule deletes it. Drop-In Center We received no comments on the proposed definition and have left it unchanged in the regulatory text. Drug Abuse Education and Prevention Services Drug abuse education and prevention services are important, and are defined under that term in the Act (section 387(1)). We proposed to broaden the substance of the statutory definition in regulatory text to read: `Drug abuse education and prevention services means services to prevent or reduce drug and/or alcohol abuse by runaway and homeless youth, and may include (1) individual, family, group, and peer counseling; (2) drop-in services; (3) assistance to runaway and homeless youth in rural areas (including the development of community support groups); (4) information and training relating to drug and/or alcohol abuse by runaway and homeless youth to individuals involved in providing services to such youth; and (5) activities to improve the availability of local drug and/or alcohol abuse prevention services to runaway and homeless youth.' Our reasons for the broadening of this definition are two-fold. First, we note that the RHY statute explicitly contemplates services to address alcohol abuse in section 387(5). Second, the inclusion of alcohol abuse in addition to drug abuse is standard practice in the substance abuse field as is demonstrated in the definition used by the Substance Abuse and Mental Health Services Administration: `substance abuse means the abuse of alcohol or other drugs.' We received no comments on this definition and it is retained as proposed. Health Care Services In the proposed rule, the definition of health care services read: `Health care services means physical, mental, behavioral and dental health services and, in the case of Maternity Group Homes mean those provided to the child of the youth; and where applicable and allowable within a program, family or household members of the youth shall receive information on appropriate health related services.' Comment: We received four unique comments on the proposed definition, some of these representing multiple individuals and organizations. Three comments pointed out that the language as drafted did not clearly cover both youth and any children of these youth. A fourth comment generally praised the proposed definition, but raised two issues, one concerning the need for longer-term treatment, and one concerning the confidentiality of private health information that might be provided to family members. Response: We have revised the definition to state more clearly that health care is not only for the client youth, but also in some cases for the child of the youth. We agree that longer-term treatment and privacy of medical information are important issues. We do not believe, however, that they should be addressed in a definition and respond to this comment in our discussion of requirements concerning referral services and information confidentiality. Additionally, based on a comment received in § 1351.19 of the proposed rule to specifically prohibit conversion therapy, we are adding a sentence to the definition of “health care services” in § 1351.1 to specifically exclude conversion therapy and referrals to conversion therapy by adding language at the end of the definition that says “[a]ny treatment or referral to treatment that aims to change someone's sexual orientation, gender identity, or gender expression is prohibited.” Home-Based Services We proposed to follow the substance of the statutory definition (section 387(2)) of home-based services to read as follows: Home-based services means services provided to youth and their families for the purpose of preventing such youth from running away or otherwise becoming separated from their families and assisting runaway youth to return to their families. It includes services that are provided in the residences of families (to the extent practicable), including intensive individual and family counseling and training related to life skills and parenting. Comment: We received three unique comments on the proposed definition of home-based services, representing in total about 50 individuals and organizations. One commenter suggested that we retitle this definition to refer to “family support and reunifications services” rather than “home-based” services, to reflect the clear purpose of the services as defined. This commenter also recommended adding a definition for supportive housing to capture the need for in-home services when the youth does not live with his or her family. The other commenters said that the definition should specifically allow for the case where family reunification is not in the best interest of the youth. Response: We have not changed the definition. The term “home-based” is the statutory term used in the Runaway and Homeless Youth Act and we see no compelling reason to depart from the terminology of the statute. The commenters are correct that the focus is on family reunification, but we think “home-based” is well understood to mean services provided in the home of the youth's family. Underlying both sets of comments is the point that there will be cases where family reunification is not in the best interest of the youth. We agree with this point. However, nothing in this definition (or elsewhere in the rule) prevents or inhibits either youth or their service providers from considering that question and reaching a decision that home-based services are not possible or appropriate in a particular case, even though they are the preferred outcome in the great majority of cases. We deal further with the issue of “best interest of the youth” in our discussion of additional requirements that apply to all local services grants. Homeless Youth Homeless youth is an essential definition because it identifies individuals eligible to be served under the Act. We proposed to revise the previous definition to read as follows, paraphrasing the Act (section 387(3)): `Homeless youth means an individual who cannot live safely with a parent, guardian or relative, and who has no other safe alternative living arrangement. For purposes of Basic Center Program eligibility, a homeless youth must be less than 18 years of age (or higher if allowed by a state or local law or regulation that applies to licensure requirements for child- or youth-serving facilities). For purposes of Transitional Living Program eligibility, a homeless youth cannot be less than 16 years of age and must be less than 22 years of age (unless the individual commenced his or her stay before age 22, and the maximum service period has not ended).' Comment: We received six unique comments on this definition, one endorsed by many individuals and organizations, focusing on a number of specific issues. One commenter asked if a youth could stay in the Basic Center program if an individual enrolled before age 18 and turned 18 while in the programs, or whether that meant that the newly 18 year old individual would become his or her own legal guardian. Another asked whether the Basic Center age could be raised to 19. Two commenters asked whether the age for Transitional Living could be raised, mentioning 24, 24 1/2 , or 25 as options. One commenter recommended that the term “guardian” be replaced by “legal guardian.” One commenter requested clarification that “safety” be interpreted broadly to include not only safety from physical harm, but also from emotional and mental harm. Another comment noted conflicts between state laws and federal policies which include different ages for services. The commenter also noted that the terms “cannot live safely” and “no other safe alternative” are not included in some state definitions but are included in the federal definition of youth homelessness. Response: These age limits and the restrictions related to safe environments are taken from the federal statute's definition of homeless youth in section 387(3) of the Act. We agree that there are circumstances where these strict limitations may inhibit service provision, but note that nothing prevents a state government, a local government, or a private organization from funding services directly for older youth or those who otherwise do not qualify under federal law. Regarding the Basic Center program age limits, section 387(3)(A)(i) says in the case of a youth seeking shelter in a center under the Basic Center program, a homeless youth is “less than 18 years of age or is less than a higher maximum age if the State where the center is located has an applicable State or local law (including a regulation) that permits such higher maximum age in compliance with licensure requirements for child- and youth-serving facilities.” For the Transitional Living Program, section 387(3)(A)(ii) says youth who can be served in the program must be not less than 16 years of age and either (I) less than 22 years of age; or (II) not less than 22 years of age, as the expiration of the maximum period of stay permitted if such individual commences such stay before reaching 22 years of age. The word “guardian” normally means an officially appointed legal guardian, but for consistency with other text we have added the word “legal” to our definition. We agree with the comment that “safe” and “safely” encompass avoiding mental (including emotional) and physical harm. We further note that Runaway and Homeless Youth projects must also serve youth at risk of running away or becoming homeless, which is particularly important when either physical or mental abuse or family instability is involved. Finally, while there are some instances in which state definitions of “youth homelessness” differ from federal law, the federal statutory language which governs RHY programs is very specific and cannot be amended without action from Congress. This definition aligns with the existing statutory language in the Act. Host Family Home We proposed host family home to read: Host family home means a family or single adult home that provides shelter to a homeless youth. Comment: We received four unique comments on this definition, with over 100 individuals and organizations endorsing one set of comments. Two comments said that our definitions of congregate care and host family home were essentially identical. A third comment said that in at least one state what we called a host family home would be allowed to serve two homeless youth, not merely a single youth. The fourth comment asked why the word family was used rather than host, and whether a home could be a family home if only one adult was present. Response: While we agree that the definitions of `congregate care' and `host family home contain similar elements, we do not agree that our definitions are essentially identical. A host family home implies the presence of a person or family who rents or owns the building or apartment and uses it as its own domicile, and takes in or “hosts” one or possibly two homeless youth who will live with the person or family. If no homeless youth are present, it is still that person's or family's domicile. For clarity, we have revised the definition to include that a host family home means a home or domicile. A family retains discretion as to whether it hosts a particular youth or any youth. In contrast, a congregate care shelter need not be and ordinarily would not be the domicile of a family, would ordinarily serve a larger number of homeless youth, would have essentially all spaces shared, and would have organized social and recreational activities. Congregate care facilities are also normally licensed as shelters, whereas a family host home may be able to host unrelated individuals without a license. As to calling the home by that term, we were following the statutory terminology. As our definition states, a family may be a single adult. We do agree that there are circumstances where a family might be willing and able to host more than one youth (for example, multiple siblings), and have revised the definition to allow for that option. Intake Intake services are essential functions under the Act. We proposed to define intake to read: `Intake means a process for gathering information to assess eligibility and the services required to meet the immediate needs of the client.' Comment: We received three comments on the definition of intake, One commenter recommended that the intake definition include a clause stating that “intake may occur in the context of a community-level coordinated entry or assessment system,” with the justification that HUD has Continuum of Care regulations that can serve an important intake role. Another comment made the same point about the HUD process without recommending specific language. One commenter suggested that it would be beneficial for the program if ACF encouraged grantees to participate in broader planning processes within Continuum of Care areas. Response: We agree that all the comments raise valid concerns. We have added to the intake definition: `The intake process may be operated independently but grantees should, at minimum, ensure they are working with their local Continuum of Care to ensure that referrals are coordinated and youth have access to all of the community's resources, given the major role that HUD-funded programs perform in serving homeless individuals of all ages. We have not, however, limited it to any particular system or process, since states or communities need flexibility to experiment or supplement. We did not include a planning and coordination requirement in the definition, as it more appropriately belongs in our requirements. We proposed a requirement for participating in training and technical assistance related to coordinated services in local networks in proposed § 1351.20(a), which applies to all local service grants, and are revising it in this final rule to include participation in coordinated networks (one of which would be Continuum of Care areas). Juvenile Justice System Extremely important in this program are interfaces between Runaway and Homeless Youth projects and the juvenile justice system. We received no comments on our proposed language but have recognized that only the term “juvenile justice system” is referenced in the Act and in other places in regulatory text. For this reason, we have deleted the words “institutions, or authorities” from the defined term. “Law Enforcement Structure” and “A Locality” In the proposed rule, we stated that “law enforcement structure” and “a locality” are definitions that are unnecessary in these regulations and accordingly we proposed to delete them. We received no comments on these proposals, and the final rule deletes these definitions. Maternity Group Home For runaway and homeless youth who are pregnant or who have children, congregate or scattered-site maternity-related services are essential. Accordingly, we proposed: `Maternity group home means a community-based, adult-supervised transitional living arrangement where client oversight is provided on site or on-call 24 hours a day and that provides pregnant or parenting youth and their children with a supportive environment in which to learn parenting skills, including child development, family budgeting, health and nutrition, and other skills to promote their long-term economic independence and ensure the well-being of their children.' Comment: We received one comment. The commenter asked what was meant by “transitional” and what justification there would be for placement into other settings such as individual apartments if more time were needed to assess youth functioning. Response: For the purposes of the RHY Maternity Group Home program, “transitional” simply means that these services are temporary and limited either by age and/or by function. For example, maternity group homes may be specifically tailored to serve pregnant or parenting youth who are transitioning to self-sufficiency. The basic purpose of a maternity group home is to prepare youth for a more permanent home, and the duties of a group home include assessing readiness for that change. The final rule leaves this definition unchanged. Outreach We proposed to add a definition for outreach to read as follows: `Outreach means finding runaway, homeless, and street youth, or youth at risk of becoming runaway or homeless, who might not use services due to lack of awareness or active avoidance, providing information to them about services and benefits, and encouraging the use of appropriate services.' Outreach includes low-barrier services such as food packs and personal hygiene packs. Comment: We received two comments on this definition. One commenter asked if a drop-in center could perform properly, and be funded, without performing a street outreach function. The other commenter suggested that the definition include, as one outreach service purpose, providing information about housing options and family reunification. Response: We think that both commenters raise good points but the first does not distinguish between the definition of a function and the obligations of grantees. Our definitions are not intended to prescribe the obligations of grantees, but simply to describe the function or service to reduce ambiguity. Regarding the first comment, while many grantees may perform both drop-in center and outreach functions, our rules do not require that all grantees perform both functions. These are distinct services. We do not prohibit outreach providers from giving additional information, beyond that which is part of the core function. Regarding the second comment, our standards for Street Outreach Program grantees require them to provide services that are designed to assist clients in leaving the streets, which may include housing or family reunification (see § 1351.27 of the final rule) as well as to perform outreach services. Accordingly, we have not changed the definition of outreach in the final rule. Risk and Protective Factors We include risk and protective factors under the list of technical assistance or short-term training that may be determined as necessary by HHS as a condition of funding. Therefore, we proposed a definition of risk and protective factors to read: `Risk and protective factors mean those factors that are measureable characteristics of a youth that can occur at multiple levels, including biological, psychological, family, community, and cultural levels, that precede and are associated with an outcome. Risk factors are associated with higher likelihood of problematic outcomes, and protective factors are associated with lower likelihood of problematic outcomes. While we received no comments on this change, it was deemed appropriate to frame protective factors as positive impact outcomes and so we have made minor wording changes to reflect that protective factors are associated with a higher likelihood of positive outcomes. We made other minor changes in order to mirror the definition used across the federal government and on the Youth.gov Web site. Runaway Youth Another core statutory term is runaway youth. We proposed to update the existing definition to reflect the Act (section 387(4)) and to read: Runaway youth means an individual under 18 years of age who absents himself or herself from home or a place of legal residence without the permission of a parent or legal guardian. Comment: We received one comment on the proposed definition. This comment, representing the views of many individuals and organizations, supported our proposed definition but asked whether it limited the ability of grantees to serve youth who leave their place of legal residence at the behest of a parent or legal guardian. Response: We appreciate the importance of this question, since it is vital that the program serve youth who are forced or coerced to leave their homes. The answer, however, is not to change the definition of runaway youth, but to recognize that the program serves both runaway and homeless youth, and that the latter group includes those who have lost their family home, such as through physical or verbal pressure from parents or guardians. Therefore, we have left this definition unchanged in this final rule. Runaway and Homeless Youth Project We received no comments on the proposed definition and it is unchanged in the final rule. Safe and Appropriate Exits We proposed to add a definition of Safe and Appropriate Settings When Exiting Basic Center Program Services or Transitional Living Program Services. The proposed definition said that Safe and Appropriate Settings When Exiting Basic Center Program Services or Transitional Living Program Services means settings that reflect achievement of the intended purposes of the Basic Center and Transitional Living Programs as outlined in section 382(a) of the Act. Safe and appropriate settings when exiting Basic Center Program Services or Transitional Living Program Services are not exits: • To another shelter; • to the street; • to a private residence, other than a youth who is staying stably with family, if the youth is not paying rent; • to another residential program if the youth is not paying rent or if the youth's transition to the other residential program was unplanned; • to a correctional institute or detention center if the youth became involved in activities that lead to this exit after entering the program; • to an unspecified other living situation; or • to a living situation that is not known. By defining “Safe and Appropriate Settings when exiting Basic Center Program services or Transitional Living Program services,” our intent was to move the field beyond just finding a place for the youth to stay. However, as discussed in the following responses to the several dozen comments we received, all requesting clarifications or changes to the proposed definition, we have made significant changes to the definition in the final rule. Almost all commenters found the proposed limitations on safe and appropriate settings to be inconsistent with commonly used best practices and some desirable outcomes. Some of these commenters also raised concerns about achieving performance standards with such restrictions in the definition. Comment: We received many unique comments arguing that in some situations a youth may need to go to another shelter, including shelters that provide for special needs. Most of these commenters pointed out that a minor is allowed to stay in a Basic Center for 21 days, and if not unified with this family or placed in Foster Care in that period of time might appropriately go to a Transitional Living Program, which provides services up to 21 months. Also, one commenter pointed out 21 days is often not enough time to resolve issues and transition to a stable family arrangement. Response: We agree. Indeed, one of the appropriate exits from the Basic Shelter Program is to the Transitional Living Program. We have revised the final rule to delete “another shelter” from the list of unsafe exits. Comment: Many unique comments addressed the clause concerning exit to a private residence. Most of these pointed out that the private residence of a friend might not involve rent payment and might be an appropriate exit, that in most cases minors will not be able to sign a lease and pay rent, and that some programs such as Job Corps, Foster Care, and Transitional Living do not charge rent. Several commenters pointed out subsidized housing sometimes involves rent-free accommodation until the renter has income. These commenters recommended that we delete this prohibition on the use of free rental housing. Some commenters also recommended that we redefine family to include unrelated individuals thought of as family by the youth. Response: We agree that payment of rent is not a useful demarcation and have modified the definition accordingly, both as it applies to private residences and other residential programs. We also agree that there are cases where stays with an adult relative who is not a member of the immediate family ( e.g., grandparent, aunt, or uncle), with an adult family friend, or with an adult friend, would be appropriate exits. Accordingly, we have modified the clause on private residences to allow for such situations, where they involve a stable arrangement. To address the recommendations about unrelated individuals, we revised the rule to allow for placement with unrelated individuals in some cases. Comment: Several commenters addressed other possible safe exits that were not clearly addressed under the clauses on either private housing or other residential programs. The commenters who raised the issue about supportive housing (rent free or not rent-free) also implicitly made the point that some older homeless youth will be placed into their own housing units, without any other resident. One commenter asserted that the proposed clause concerning other residential programs did not clearly include Child Welfare Services. Response: We agree that the pertinent clauses under the definition as proposed were ambiguous as to supportive housing as well as Foster Care or other Child Welfare Services. We have revised the clause on other residential programs to more clearly include such programs. In particular, our recognition of planned exits to other residential programs as being safe is intended to cover exits to permanent housing and to permanent supportive housing, as well as to foster home placement. Comment: Several commenters recommended that we drop from the list of unsafe exits the case where a youth's activities after entering the program lead to placement in a correctional institute or detention center. The commenters argued that clearing up prior warrants might lead to jail time, or that this could create barriers to serving youth with many prior law enforcement encounters, such as human trafficked youth. One commenter was concerned that it could count against discharge rates for shelter providers. Response: We do not agree that clearing up warrants that apply to actions before the youth entered the program come within this definition. The proposed definition was worded to exclude such actions. We do not believe distinguishing prior and new law enforcement encounters and issues will be difficult for grantees or will create barriers. Within the Runaway and Homeless Youth Program, we are committed to building capacity amongst RHY providers to identify and assist trafficking victims through training and funding opportunity announcements. We are also running a demonstration program initiative with our RHY and family violence program to expand outreach to service providers that may have contact with domestic victims of human trafficking. Since many programs for human trafficking victims are run by law enforcement, we have slightly refined our definition of exits that are not safe and appropriate. Comment: One commenter asked that we exempt an exit to a living situation that is not known by short stay residents who leave the program after fewer than seven days of residence. Response: We agree that transitory stays are a problem. Nonetheless, those that result in exits to unknown destinations must be characterized as unsuccessful. We have not accepted the proposed change. Comment: One commenter asked that we delete “unplanned” exits to another residential program from the list of unsafe exits. Response: We agree that there are cases in which the needs assessment, counseling, and guidance provided by the program will not have identified some particular option that would be beneficial. Indeed, the client himself may find that option, or learn of it from other sources to which he had been referred. We have changed the language to refer to “inconsistent with the youth's needs.” Comment: We received several comments arguing that it would be better to define safe and appropriate exits in terms of those that are safe rather than those that are not, or alternatively as those that are both. One listing of safe exits included independent living, residential apprenticeships, higher education, family, mental health or substance abuse program, military service, or any other planned residential program. Response: We agree that defining safe and appropriate exits in terms of those that are safe and are not safe is a good approach and have changed this in the final regulatory text. We have crafted language in an effort to demonstrate what safe and appropriate exits generally look like and have incorporated some of the concepts suggested so that a safe and appropriate exit will include: (1) To the private residence of a parent, guardian, another adult relative, or adult family friend that has the youth's best interest in mind and can provide a stable arrangement; (2) to another residential program if the youth's transition to the other residential program is consistent with the youth's needs; or (3) to independent living if that is consistent with the youth's needs and abilities. In addition, we note that in comments received, commenters referred to “safe and appropriate exits” instead of the longer title proposed that read “safe and appropriate settings when exiting Basic Center Program services or Transitional Living Program services.” For this reason, we have shortened the definition to only refer to “safe and appropriate exits” in this final rule. Service Plan or Treatment Plan We also proposed to define a service plan, sometimes called a treatment plan, to read: Service plan or treatment plan means a written plan of action based on the assessment of client needs and strengths and engagement in joint problem solving with the client that identifies problems, sets goals, and describes a strategy for achieving those goals. To the extent possible, the plan should incorporate the use of evidence-based or evidence-informed interventions. Comment: We received two unique comments on this proposed definition. One commenter asked whether training and technical assistance will include information on evidence-based practices. The other comment (joined by many individuals and organizations) pointed out that the preamble text, but not the regulatory text, included the concept of safety planning. That comment also asked that safety planning include suicide prevention and other mental health crises. Response: FYSB will provide training and technical assistance to grantees by sharing evidence-based service planning practices. As to safety planning, we acknowledge the oversight and have added safety planning to the regulatory definition in the final rule. We have revised the proposed definition to include, in the final rule, “As appropriate, the service and treatment plans should address both physical and mental safety issues.” This covers all such issues, but does not require that plans explicitly address every unforeseen circumstance. Short-Term Training We received no comments and the final rule contains the proposed definition unchanged. State We did not receive any comments and have left this definition unchanged in the final rule. Street Youth We proposed to define street youth to read: `Street youth means an individual who is a runaway youth or an indefinitely or intermittently homeless youth who spends a significant amount of time on the street or in other areas that increase the risk to such youth for sexual abuse, sexual exploitation, prostitution, or drug and/or alcohol abuse. For purposes of this definition, youth means an individual who is age 21 or less.' This definition reflects the statutory language from the Act (section 387(6)). Comment: We received one comment, which asked why we used age 21 or less in the definition. Response: The statute defines street youth to include a runaway youth or indefinitely or intermittently homeless youth. The statutory definition of homeless youth as defined in section 387(3) states that youth must be less than 22 years old. Accordingly, we have made no change in the final rule. Supervised Apartments We received no comments on the definition of `supervised apartments' and have left the regulatory text unchanged in this final rule. Technical Assistance We received no comments on this definition and have left it unchanged in the final rule. Temporary Shelter Finally, we proposed to update the definition of temporary shelter to read: `Temporary shelter means all shelter settings in which runaway and homeless youth are provided room and board, crisis intervention, and other services on a 24-hour basis for up to 21 days.' Comment: We received three unique comments on the proposed definition. One commenter said that 21 days was too short and should be extended to 30 days. One said that the definition should say explicitly up to 21 days “or until such time as the statute allows.” One said that the federal rule should allow longer periods of stay “where permitted by state law.” Response: We appreciate these suggestions. Regarding the 21 day time limit, the Act is explicit at § 311(a)(2)(B) that services provided through the Basic Center Program shall include “safe and appropriate shelter provided for not to exceed 21 days.” As to state law, nothing precludes a state or private organization from subsidizing longer stays with state or private funding. We have modified the definition to make clear that 21 days is a restriction on the use of RHY funds through the Basic Center Program, not a restriction on the length of stay permitted by the facility. Temporary shelter is now defined as all Basic Center Program shelter settings in which runaway and homeless youth are provided room and board, crisis intervention, and other services on a 24-hour basis for up to 21 days. The 21 day restriction is on the use of RHY funds through the Basic Center Program, not a restriction on the length of stay permitted by the facility. We also received a number of comments suggesting that we add definitions to the final rule. We address these suggestions below. Culturally and Linguistically Appropriate Services Comment: One comment endorsed by about 50 individuals and organizations recommended that we add a definition for “culturally and linguistically appropriate services.” This comment acknowledged that throughout the proposed rule ACYF had demonstrated a clear intent that grantees provide services that are culturally sensitive and that meet the needs of diverse youth. The commenters suggested that this obligation be defined and that the definition include as its only substantive content reference to a set of service and governance standards that are promoted by the U.S. Public Health Service for use in health care settings (these standards are titled “Culturally and Linguistically Appropriate Standards in Health and Health Care,” and abbreviated CLAS). In effect, the commenters proposed that we make CLAS a binding standard for our grantees. Response: Though this final rule does not adopt the CLAS standards, it maintains the proposed rule's intent that grantees provide culturally and linguistically sensitive services and we include training on this for grantees in § 1351.23(a) of this final regulation. Family Comment: One commenter asked that we add a definition for “family,” pointing out that many LGBTQ youth have adopted “families of choice” with adults or caregivers other than their parents or legal guardians. Other commenters made similar points in comments on specific definitions or requirements that referred to families. Response: We appreciate and agree with the underlying concern. In key places in the proposed and final rule, we make clear that while family reunification with the legal parents or guardian is the preferred option and in most cases in the best interest of youth, we allow for exceptions. While we are not defining the term “family”, we have revised language throughout this final rule to allow for flexibility in instances where it may not be safe or appropriate for the grantee to contact a client's parents or legal guardians. Supportive Housing Comment: We received one comment requesting that we add a definition for supportive housing. Response: In as much as supportive housing is not a service provided through these grants, we see no need to define it or any other type of non-time-limited housing. Aftercare plans can, as appropriate, address this or any other service. Subpart B. Runaway and Homeless Youth Program Grants The previous rule contained a number of sections dealing with the purposes of the program, eligibility for grants, priority for grants, matching requirements, the period of grant awards, allowable costs, application procedures, criteria for grant funding decisions, and additional information for grantees. We proposed revisions to all of these sections as well as to the title of the subpart to be Runaway and Homeless Youth Program Grants. These sections apply to all grants under the program. Purpose Currently § 1351.10 asks, “What is the purpose of the Runaway and Homeless Youth Program grant?” We proposed to re-title this section “What is the purpose of Runaway and Homeless Youth Program grants?” This change in title reflects the growth of the program over time from the core Basic Center Program to a broader range of grant types and purposes. Relatedly, we proposed to amend the statement of purpose to emphasize not only transitional living services and other services added in recent years, but also the increasing emphasis on prevention and identifying the vulnerability of these youth. Under the proposal, the purpose of Runaway and Homeless Youth Program grants would be to establish or strengthen community-based projects to provide runaway prevention, outreach, shelter, and transition services to runaway, homeless, or street youth or youth at risk of running away or becoming homeless. We stated that youth who have become homeless or who leave and remain away from home without parental permission are disproportionately subject to serious health, behavioral, and emotional problems. 1 2 They lack sufficient resources to obtain care and may live on the street for extended periods, unable to achieve stable, safe living arrangements, during which they may be in danger. 3 4 Many are urgently in need of temporary shelter and services, 5 including services that are linguistically appropriate, responsive to their complex social identities ( i.e., race, ethnicity, nationality, age, religion/spirituality, gender identity/expression, sexual orientation, socioeconomic status, physical ability, language, beliefs, values, behavior patterns, or customs), and acknowledge the environment they come from. We proposed that services should have a positive youth development approach that ensures a young person has a sense of safety and structure; belonging and membership; self-worth and social contribution; independence and control over one's life; skills to develop plans for the future and set goals; and, closeness in interpersonal relationships. 6 To make a successful transition to adulthood, runaway youth, homeless youth, and other street youth also need opportunities to complete high school or earn a general equivalency degree, learn job skills, and obtain employment. HHS operates three programs to carry out these purposes through direct local services: The Basic Center Program, the Transitional Living Program (including Maternity Group Homes), and the Street Outreach Program. HHS conducts three additional activities to support achievement of these purposes: Research, evaluation, and service projects; a national communications system to assist runaway and homeless youth in communicating with service providers; and technical assistance and training. The proposed rule covers all of these activities. 1 Whitbeck, LB; Johnson, KD; Hoyt, DR & Cauce, AM. (2004). Mental disorder and comorbidity among runaway and homeless adolescents. Journal of Adolescent Health. 35(2): 132. 2 Cauce, AM, et al. (2000). The characteristics and mental health of homeless adolescents. Journal of Emotional and Behavioral Disorders. 8(4):230. 3 Whitbeck, LB; Chen, X; Hoyt, DR; Tyler, KA & Johnson, KD. (2004). Mental disorder, subsistence strategies, and victimization among gay, lesbian, and bisexual homeless and runaway adolescents. The Journal of Sex Research. 41(4):329. 4 Greene, JM; Ennet, ST & Ringwalk, CL. (1999). Prevalence and correlates of survival sex among runaway and homeless youth. American Journal of Public Health. 89(9):1406. 5 Clark, R. & Robertson, M.J. (1996). Surviving for the Moment: A Report on Homeless Youth in San Francisco. Berkeley: Alcohol Research Group. 6 Taylor-Seehafer, MA. (2004). Positive youth development: Reducing the health risks of homeless youth. MCN, American Journal of Maternal Child Nursing. 29(1):36. Comment: We received several comments on the purpose of the program. Two commenters praised the proposed text for its inclusion of LGBTQ in its statement of the need to serve all runaway and homeless youth. One commenter praised the statement of purpose and proposed that we adopt the U.S. Public Health Service's guidelines of Culturally and Linguistically Appropriate Services in Health Care (CLAS) as standards. A third commenter stated that we should add “trauma-informed care” as one of two practice frameworks for youth intervention to this section. Response: As previously explained, though this final rule does not adopt the CLAS standards, it maintains the proposed rule's intent that grantees provide culturally and linguistically sensitive services and we include training on this for grantees in § 1351.23(a) of this final regulation. As to “trauma-informed care,” we believe that the statement of purpose already encompasses this and other practices on dealing with the traumatic circumstances that affect runaway and homeless youth. The proposed text is adopted virtually without change (or with only stylistic changes) to the final rule. Eligibility for Grants The existing rule asks in § 1351.11 “Who is eligible to apply for a Runaway and Homeless Youth Program grant?” The eligibility requirements of the program have not changed significantly over the years but we proposed changes to this section to conform the regulatory language to the current statute. We proposed to state that all `public (state and local) and private non-profit entities, and coordinated networks of such entities, are eligible to apply for a Runaway and Homeless Youth Program grant unless they are part of the law enforcement structure or the juvenile justice system.' While specific regulatory language is not needed, we pointed out that most faith-based organizations meet the regulatory definition of non-profit. We received no comments on this section. However, because we are removing the definition of “law enforcement structure” in this final rule, we have deleted the reference to “law enforcement structure” in this section. Priority for Awards The existing regulation addresses priority for awards. In consideration of the numerous comments and varying points of view on these issues, we proposed significant and streamlined changes to the language regarding grant award priorities in § 1351.12. We received more than a half dozen unique comments on the proposed priorities and on ways to improve or refine them. Comment: Several commenters stated that our proposed language did not clearly show consistency with the statutory preference for awarding grants to applicants with past experience in serving runaway or otherwise homeless youth and recommended regulatory language to say this. One commenter suggested preference for grantees seeking continuation funding. One commenter gave specific recommendations for the amount of preference, e.g., 1 to 2 points for 10 years of successful experience. Another commenter recognized that the language did allow credit for experience but asked what objective measures or weights could be used. Several commenters recommended that points be given for successful monitoring visits. One of these stated that his project had been funded annually since 1986 but was dropped from funding despite successful performance and excellent monitoring scores. This commenter argued there should be an appeal process in case of mistakes in the award process. Response: With respect to the comments raising the issue of the statutory preference for prior experience, it is important to note that the proposed regulatory text mirrors the statutory language exactly. We note that the statute itself does not require us to give preference to an applicant with prior experience who has not performed as well as other applicants are likely to perform. The RHY statute requires that performance standards are incorporated into grantmaking, monitoring, and evaluation. For clarity and consistency, this requirement was added to the regulatory text. As to those comments proposing specific weights for our priorities or asking that those weights be included in the final rule, or suggesting other priorities for existing grantees, we are also not making those suggested changes. Annual funding opportunity announcements (FOAs) provide far more flexibility than codified regulations to enable HHS to tailor detailed rating factors or their weights to best accommodate the needs of the particular activities. We will, however, consider the specific proposals we received in modifying our priorities and rating methods in the next round of FOAs. Comment: A number of commenters addressed our proposed preference for applications costing $200,000 or less. Most of these commenters noted that the statute imposes this dollar limit only on the Basic Center Program. Some commenters also criticized what one called a “flat cap” on a funding preference for Street Outreach and Transitional Living projects with budgets of $200,000 or less, and expressed concern that this is an absolute priority. One commenter pointed out that the proposed preference would reduce incentives to obtain other public or private resources, and recommended that at the very least the preference not include in-kind resources. This same commenter also argued that larger organizations with multiple grants could use creative accounting techniques to allocate overhead costs. Several of the commenters on this issue also pointed out that this priority would penalize more effective programs with higher budgets. Some of these commenters also suggested that the dollar limit created adverse incentives with respect to hard to serve youth or the most disadvantaged youth, such as many LGBTQ youth. Response: We agree with comments that pointed out that the statutory limit relates only to the Basic Center Program and have revised the regulatory text in paragraph (a) to follow section 313(b)(2) of the Act which only applies a preference for applications less than $200,000 to Basic Center grants. We have added a clause to this provision to say that the preference will be for applications less than $200,000 “or such figure as Congress may specify” to account for future statutory changes. In addition, we have added in statutory language for prioritizing other types of RHY grants. In paragraph (b), for the Transitional Living Program, we added language from section 322(b) of the Act for prioritizing grants which says “[i]n selecting eligible applicants to receive grants under this part, the Secretary shall give priority to entities that have experience in providing to homeless youth shelter and services of the types described in subsection (a)(1)”, which references Transitional Living Programs. In paragraph (c), we have added language from section 351(b) of the Act which says that in selecting applicants to receive grants under the Street Outreach Program, the Secretary shall give priority to public and nonprofit private agencies that have experience in providing services to runaway and homeless and street youth. In paragraph (d), for the national communications system, we have added language that follows section 331 of the Act with a slight modification. The current statutory requirement is that the “Secretary shall give priority to grant applicants that have experience in providing telephone services to runaway and homeless youth.” To account for changes in technology, in this final rule we will prioritize grantees who have experience providing “electronic communications services” to runaway and homeless youth, including telephone, Internet, mobile applications, and other technology-driven services. This change is in keeping with the purposes of the provision and advances those purposes. We note that section 303 of the Act authorizes the Secretary to issue rules she considers necessary or appropriate to carry out the purposes of the Act. In paragraph (e), to prioritize grants for research, evaluation, demonstration and service projects, we added language to this section in accordance with section 343(b) and (c) of the Act. In paragraph (f), we added language to specify that the performance standards will be integrated into the grantmaking, monitoring, and evaluation processes for the Basic Center Program, Transitional Living Program, and the Street Outreach Program. We also indicated that specific details about how performance standards will be considered, along with examples of performance documentation, will be provided in the annual funding opportunity announcements. To be clear, a grant application in an amount larger than $200,000 from a project with demonstrated or likely superior performance can indeed receive an award. We also understand that serving disadvantaged youth can require additional financial investment. We want to emphasize our dedication to ensuring that all youth are served, including LGBTQ youth (as noted by the commenter) and youth who have experienced adverse circumstances, including physical and mental abuse, drug use, human trafficking, and other circumstances. We will address additional criteria for prioritizing grants to serve these vulnerable young people within our annual FOAs. Comment: One commenter recommended that funding priority under § 1351.12 be given to applicants currently accredited by a national accrediting body. Response: Accreditation is another example of a possible future criterion for use in setting priorities or rating factors in annual FOAs. From currently available evidence, we do not have a sufficient basis to justify including such preference in a codified rule. Comment: A commenter endorsed by many individuals and organizations argued a priority be added to § 1351.12 for applicants providing services without discrimination on the basis of sexual orientation or gender identity and that can best provide services meeting the needs of LBGT youth. This commenter also suggested adoption of “culturally and linguistically appropriate” (CLAS) services as a priority, and for adoption of nondiscrimination requirements at 42 U.S.C. 18116 (section 1557 of the Affordable Care Act). Response: These civil rights issues are dealt with elsewhere in this final rule preamble and in sections of the final rule text. For example, see §§ 1351.20 through 1351.22 which discuss additional requirements for RHY grantees. Based on comments received and for clarity, we have revised the final rule language in this section to mirror the language in the Act. Matching Requirements We proposed a change to § 1351.13 regarding matching share. The previous regulatory language conflicted with the updated statute on the amount of funding required by grantees to satisfy the match requirement. The previous language required a non-federal match amount which was at least equal to 10 percent of the federal funds received. To align the statute and the regulations, we proposed that the federal share of the project represents 90 percent of the total project cost supported by the federal government, thus the remaining 10 percent represents the required project match cost by the grantee. This may be a cash or in-kind contribution. We note that the language of the statute is phrased in terms implying an exact 10 percent matching share, but HHS has always taken the position that the language should not be interpreted to prevent grantees from spending additional funds from their own resources. We received no comments on these proposed changes and have left them unchanged in the final rule. Project Period We did not propose changes to § 1351.14, providing that the period for which a grant will be awarded is generally one year, renewable annually. We received no comments on this section and have left it unchanged. Supportable Costs We proposed minor changes to update the language under § 1315.15 to more fully describe costs allowed under Runaway and Homeless Youth Program grants. Costs that can be supported include, but are not limited to, staff training and core services such as outreach, intake, case management, data collection, temporary shelter, transitional living arrangements, referral services, counseling services, and aftercare services. We proposed to retain the existing prohibition against acquisition or renovation costs that exceed 15 percent of the grant award, subject to potential waiver. We also proposed adding language that clarifies that research and evaluation, communications, and technical assistance grants are allowable costs that pertain to their unique purposes. Comment: We received one comment on these provisions. That commenter recommended that the list of supportable costs be amended to include transition to permanent housing. Examples were suggested, including first month of rent, move in costs, or utility fees. Response: The proposed definition excluded no reasonable costs related to achieving the goals of the program, other than a few specific limitations and those listed in costs not allowable. It used the phrase “include, but are not limited to.” Hence, in some circumstances we may pay for costs related to transition to permanent housing. It would be inappropriate, however, to pay for costs that are the legal obligation of another program. We have not changed the language in the final rule. Costs Not Allowable We proposed a change to the language under § 1351.16, now § 1351.16(a) of the final rule, that currently states only that capital costs for new facilities are not allowed under Runaway and Homeless Youth Program grants. We proposed retaining this prohibition and also explicitly prohibiting payment for the operating costs of existing community centers or other facilities that are used partially or incidentally for services to runaway or homeless youth clients. This does not mean that a reasonable fraction of utility or other overhead costs could not be charged to our grant when a facility provides multiple services, but it does mean that such fraction would have to be based on a reasonable cost allocation method approved by HHS, such as proportion of square footage devoted exclusively to each service in the facility. Separable costs of the Runaway and Homeless Youth project are, of course, fully reimbursable. The reason for this clarification is that we have seen proposed project budgets that include disproportionate allocations of facility-wide or overhead costs to Runaway and Homeless Youth projects that use only a small portion of the facility. We received no comments on this section and have left it unchanged in the final rule. However, we have revised the final rule by adding a new § 1351.16(b) that states, “A Runaway and Homeless Youth Program grant does not cover any treatment or referral to treatment that aims to change someone's sexual orientation, gender identity or gender expression.” This is further discussed later in the preamble. Application Procedures The current rule under § 1351.17 provides that HHS will publish program announcements of availability of grant funds annually in the Federal Register , and includes specific but outdated procedures for obtaining announcements and submitting applications. We proposed to change § 1351.17 to address three changes since the rule was last revised. First, proposed paragraph (a) recognized that we now rely primarily on the Internet (rather than the Federal Register ) for publication of our funding opportunity announcements. Second, under proposed paragraph (b) we allowed for electronic submission of completed grant applications through the federal government's http://www.grants.gov Web site. We would continue to allow for paper applications for grants. Third, our proposed language said that we will publish such announcements periodically rather than annually. The timing and frequency varies by type of grant and has changed over time. We received no comments on these proposed changes but are seeking to maximize flexibility as technology and procedures change in the future. Therefore, we have changed the language to say that an applicant should follow instructions included in funding opportunity announcements, which describe procedures for receipt and review of applications. Funding Criteria Under existing § 1351.18 we listed a number of criteria that we use for deciding which grant applications to fund. We proposed small technical changes to these criteria. Under paragraph (a) we proposed to retain the criteria that proposed projects meet funding priorities. We also added a clause making specific reference to our use of FOAs to establish specific details of the broad requirements, standards, and evaluation criteria contained in the proposed rule. Under the proposal, in reviewing applications, HHS would take into consideration whether the grant application meets the particular priorities, requirements, standards, or evaluation criteria established in funding opportunity announcements. We renumbered these criteria accordingly. In paragraph (b), we proposed to modify and combine the current requirements of paragraphs (b) and (c) for demonstrating “need” to require that the likely estimated number of unserved runaway and homeless youth in the area exceed the capacity of existing services. That is, we would not require a census-like count of such youth, but merely a reasonable estimate that the number of such youth exceeds the capacity of existing services. We received no comments on subsections (a) or (b) and the proposed text in these subsections are unchanged in the final rule. Under proposed paragraph (c), we proposed to retain the existing requirement that runaway and homeless youth centers maintain a minimum residential capacity of four and a maximum of 20 youth in a single structure (except where the applicant assures that the state where the center or locally controlled facility is located has a state or local law or regulation that requires a higher maximum to comply with licensure requirements for child and youth serving facilities as authorized in § 312(b)(2) of the Act) for all youth residing at the shelter on any given night. We proposed to clarify that the capacity standards apply only to grants that include such centers. We also proposed to revise the regulation to require centers to have the number of staff sufficient to assure adequate supervision of and treatment for the number of clients served rather than a mandatory ratio of staff to clients. This change is for consistency with the statute at section 312(b)(2)(B) of the Act. While we are not aware of any uniform best practice for establishing such a ratio, an agency would refer to state laws and licensing regulations as they pertain to runaway and homeless youth shelters for guidelines. If no runaway and homeless youth shelter laws and licensing regulations have been established in a state, the agency would refer to state child welfare laws and regulations for youth. Agencies would be required to cite the guidelines they are following for the staff ratios they deem to be appropriate. To clarify this, we have added language to paragraph (c) to say that criteria used when determining which grant applications to fund must consider the guidelines followed for determining the appropriate staff ratio. Comment: We received one comment on proposed § 1351.18(c) on residential capacity, asking whether there should be a minimum number of youth to be served by host family homes (such as 4) and when federal requirements take precedence over state or local licensing requirements. Response: We do not believe there should be any minimum number of youth served in host family homes. Some of the best domiciles may involve room for, or willingness to supervise and host, just one youth. Our residential capacity requirements are not intended to preempt state or local rules in any way, and we specifically allow state or local licensure requirements to impose higher maximum standards. Under paragraph (d), we proposed to slightly modify the criteria under current paragraph (e) removing the language concerning the 72-hour timeframe from admission for the program to make contact with family. The requirement is contained in Subpart C, at new § 1351.24(e). We received six unique comments on this section, and address the concerns of these commenters separately below. Comment: Section 1351.18(d) of our funding criteria contains our proposed provision on making “best interest of the child” an important requirement. Several comments on other sections had mentioned a concern over making that criterion clear. One commenter recommended that this term also be incorporated into the definitions of counseling services, health care services, and home-based services; addressed or added in three paragraphs of this section, and added to sections on requirements for Basic Center projects and performance standards for these grantees. Two other commenters on best interest of the child also suggested amending the proposed language dealing with alternative living arrangements. Response: We placed this important requirement in our section on overall criteria for funding priorities, a core section of the rule. We agree that the best interest of the child will in some cases prevent either counseling with or reunification with the family. In some cases ( e.g., involving sexual orientation or gender identity) the family will have forced the youth to leave and be unwilling to discuss the matter, and in some cases physical abuse or other criminal behaviors will prevent family involvement. We appreciate that there are many other specific provisions where we could add requirements or references to best interest of the child and we do reference the best interest of the child consistently throughout this rule. It is in this section that we explicitly make best interest of the child one of the major priorities to be addressed in all funding awards and all runaway and homeless youth services. Our proposed language explicitly conditioned joint involvement of youth and family to cases “when possible.” We did not intend “possible” to mean only literal impossibility (though this will sometimes be the case), but “reasonably possible,” and taking into account the circumstances of each case and the best interest of the client youth. We have revised the rule to reflect this. Consistent with section 312 of the statute, our proposed language also required that grantees develop adequate “plans,” which includes in this context carefully considered methods and procedures for handling the most difficult circumstances and situations where family involvement may not be reasonably possible. We think that the proposed rule language provides a clear “best interest” policy applicable to all services for the client youth, and have not revised either this section or other sections in response to these comments. As for the comments suggesting that we revise the text concerning best interest of the child to more clearly indicate that alternative living arrangements (not just to return home or to law enforcement) are an option that will sometimes be in the best interest of the child, we agree that alternative living arrangements should be considered when developing plans for Basic Center grantees. We have modified the language to cite the statute more closely, which says in section 312(b)(3) that such grantees “shall develop adequate plans for contacting the parents or other relatives of the youth and ensuring the safe return of the youth according to the best interests of the youth, for contacting local government officials pursuant to informal arrangements established with such officials by the runaway and homeless youth center, and for providing for other appropriate alternative living arrangements.” We proposed to retain the language in paragraphs (f) through (h) of the previous version of this regulation and renumber them (e) through (g). This language ensures that HHS criteria for deciding which RHY grant applications to fund include: (e) Plans for the delivery of aftercare or counseling services to runaway or otherwise homeless youth and their families; (f) Whether the estimated cost to HHS for the Runaway and Homeless Youth project is reasonable considering the anticipated results; and (g) Whether the proposed personnel are well qualified and the applicant agency has adequate facilities and resources. We added a new paragraph (h) to ensure that HHS criteria for deciding which RHY grant applications to fund includes past performance on a RHY grant, including but not limited to program performance standards. In fact, paragraph (h) clearly states our intent to consider a grantee's past performance, including measures associated with the performance standards outlined in §§ 1351.30, 1351.31, and 1351.32, when deciding which RHY grantee applications to fund. Paragraphs (i) and (j) outline funding criteria for whether the proposed project design, if well executed, is capable of attaining program objectives. The paragraphs also outline funding criteria for whether the grant application is consistent with the provisions of the Act and these regulations. These paragraphs were unchanged. A new paragraph (k) was proposed to include other factors as outlined in the funding opportunity announcements. Comment: One commenter discussing § 1351.18 argued for adding a reference to a new civil rights law, and for requiring “culturally and linguistically appropriate services” in five separate paragraphs within this section. This same commenter argued for adding such a reference or requirement in many other sections of the rule. Response: The final rule maintains the proposed rule's intent that grantees provide culturally and linguistically sensitive services. See § 1351.23(a) of this final regulation. Comment: One commenter asked that we include appeals procedures to deal with mistakes in the review process and involve regional staff in the grant review process to § 1351.18. Response: This rule governs primarily the operation of the Runaway and Homeless Program by grantees, and does not address or govern the internal administrative processes of the federal government. Hence, while we appreciate the suggestions as to the grant review process, we do not address them in the final rule. We will take them into account in our internal decision making. We note that we already involve regional staff in the grant review process, since they bring unique expertise and knowledge of local conditions and grantees to that process. In addition, in accordance with the HHS Grants Policy Statement, “The decision not to award a grant, or to award a grant at a particular funding level, is discretionary and is not subject to appeal to any OPDIV or HHS official or board.” Comment: Two commenters asked that we add as a criterion to § 1351.18 “demonstrated engagement in efforts with the local Continuum of Care” activity and one of these suggested adding partnerships with adult homeless agencies as a requirement. One of these commenters also recommended that grant applicants should show that they are integrating Runaway and Homeless Youth Management Information System (RHYMIS) reporting with the HUD Homeless Management Information System (HMIS) reporting. Response: Coordination with other agencies and programs is very important to the program, both to improve outcomes and to reduce wasted or duplicative effort. Continuum of Care is one of the most important of these in many areas served by our grantees. We have chosen not to make such coordination a criterion for funding decisions on individual grant awards, but have instead included it in our additional requirements, discussed in our response to comments on the next section of the rule. As for program reporting, the integration of these two systems is proceeding and once completed will be enforced under § 1351.23(c) of the final rule. See our subsequent discussion of that subsection. Other Federal Requirements and Program Policies After reviewing comments, the final rule has expanded upon § 1351.19 of the proposed rule to provide clarity by separating the section into §§ 1351.20 through 1351.22 in subpart A of the final rule. This is discussed in detail below. Under the previous rule, § 1351.19 contains a list of other rules and regulations that apply to applicants for, or recipients, of program funds. These include, for example, regulations concerning civil rights obligations of recipients and regulations concerning fraud, waste, and abuse. We proposed amending that rule to include additional rules that also are specifically intended to apply to all HHS grantees or, in some cases, to all federal grantees. The expanded list under proposed paragraph (a) included rules related to civil rights requirements, to other client protections, to administrative requirements in HHS grant programs, and to preventing fraud or abuse. This expanded list does not attempt to list all of the federal laws and regulations ( e.g., provisions of the Internal Revenue Code regarding non-profit status, minimum wage requirements, and numerous others) that pertain to organizations that may be grant applicants or awardees. The provisions we listed here are not for the most part administered through either the Administration for Children and Families or its Runaway and Homeless Youth Program (though the agency may in some instances assist in their enforcement), but by other HHS components or by other federal agencies that set the conditions and enforcement mechanisms that apply to those provisions, and that determine whether and in what circumstances grant-related penalties may apply. For example, the HHS Office for Civil Rights enforces civil rights protections. This section already contains in paragraph (b) several additional provisions, mainly client confidentiality protections, that we did not propose to change, as well as new and expanded protections concerning protection of youth and providing non-discriminatory services that comprehensively address individual needs. In paragraph (c), we proposed to update our reference to the Act as defined in the proposed rule. We also proposed to amend the title of the section to include “other Federal Requirements” in the title. We received no comments on many of these subsections and have left the language of those subsections unchanged in the final rule. Comment: We received several comments on § 1351.19 suggesting that we add a civil rights law, 42 U.S.C. 18116, enacted as section 1557 of the Affordable Care Act (ACA), to the list of applicable rules in subsection (a). This statute prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities, including those funded by federal grants or established under Title I of ACA. Existing laws and regulations already prohibit most of these types of discrimination, at least for federal grantees and in some cases for all or most service providers, whether or not involving health. The most notable addition in the recently enacted statute is the prohibition against sex discrimination in the provision of health care services. Current sex discrimination regulations applicable directly to grantees cover only those grantees providing education services (of course, there also exist employment-related prohibitions on sex discrimination by private or public employers that are enforced by yet other agencies, such as the Equal Employment Opportunity Commission, regardless of grantee status). Some persons, including these commenters, hope or expect that this new and far broader prohibition on sex discrimination will extend to sexual orientation and gender identity. Response: Section 1351.22 has been added to address discrimination in RHY grantee programs and facilities. The new language added in § 1351.22(a) prohibits discrimination on the basis of sex, sexual orientation, and gender identity and expression. This section clarifies the intent of the section as initially written in the notice of proposed rulemaking (NPRM). To be clear, the rule does not bar grantees from considering the needs of each applicant and the health and safety of other beneficiaries when determining eligibility for programs, activities, or services. Language has been added in § 1351.22 making this part of coordinated entry explicitly permissible. A preceding clause at § 1351.20 includes references to 45 CFR part 86 and 92, both which prohibit discrimination on the basis of sex, which includes gender identity. The former rule, at 45 CFR 86.31, applies to education programs or activities that are carried out under various HHS-funded grant programs including RHY grants. The latter rule, at 45 CFR part 92, applies to the provision of mental health counseling and other health activities carried out by the RHY programs. Section 1351.20 of the final rule lists fourteen codified regulations that apply or potentially apply to all federal grantees (as applicable). Title 42 U.S.C. 18116 was enacted in 2010 and conforming regulations were issued on May 18, 2016 at 45 CFR part 92, entitled “Nondiscrimination in Health Programs and Activities,” which implements the prohibition of discrimination under section 1557 of the Affordable Care Act (ACA) of 2010. These regulations prohibit discrimination on the basis of sex, including gender identity in HHS-funded health programs or activities. To the extent that an RHY grantee operates health programs or activities, any part of which receives federal financial assistance, section 1557 and the corresponding regulations under 45 CFR part 92 will apply to that health program or activity. For these reasons we revised our list of regulations that apply or potentially apply to Runaway and Homeless Youth Program grantees to include 45 CFR part 92. Comment: Another commenter asked that we apply the language of a New York State nondiscrimination statute to Runaway and Homeless Youth grantees, on behalf of LGBTQ youth. The commenter stated that the New York law explicitly prohibits programs, program staff, and program volunteers from engaging in or condoning discrimination or harassment on the basis of race, creed, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability. Other commenters asked that we not merely require that our grantees be responsive to the needs of LGBTQ youth, but also prohibit discrimination against such youth. Response: We have included language in § 1351.22 of the final rule that requires service delivery and staff training to comprehensively address the individual strengths and needs of youth as well as be language appropriate, gender appropriate (interventions that are sensitive to the diverse experiences of male, female, and transgender youth), and culturally sensitive and respectful of the complex social identities of youth ( i.e., race, ethnicity, nationality, age, religion/spirituality, gender identity/expression, sexual orientation, socioeconomic status, physical or cognitive ability, language, beliefs, values, behavior patterns, or customs). No runaway youth or homeless youth shall, on any of the foregoing bases, be excluded from participation in, be denied the benefits of, or be subject to discrimination under, any program or activity funded in whole or in part under the Act. Additionally, after publication of this rule, we will produce a best-practices guide focused on sheltering and serving LGBTQ youth. This document will serve as a tool for grantees and will include information about how to create safe and affirming spaces for transgender youth. Comment: One commenter asked that we specifically prohibit for LGBTQ youth so-called “conversion therapy,” meaning “[a]ny treatment or referral to treatment that aims to change someone's sexual orientation, gender identity or gender expression.” Response: We are not aware of any instance where an RHY grantee has used “conversion therapy” or “reparative therapy” to aim to change an individual's sexual orientation or gender identity. However, we agree it would be wholly inappropriate for this to take place and are amending this final rule to explicitly exclude, by definition, conversion therapy from allowable counseling services and health care services. Additionally, we have revised the final rule by adding a new § 1351.16(b) that states, “A Runaway and Homeless Youth Program grant does not cover any treatment or referral to treatment that aims to change someone's sexual orientation, gender identity, or gender expression.” Additionally, we have revised “counseling services” and “health care services” in § 1351.1 to specifically exclude conversion therapy by adding language at the end of the definition that says “[a]ny treatment or referral to treatment that aims to change someone's sexual orientation, gender identity or gender expression is prohibited.” Conversion therapy is a controversial practice and a number of states, including Oregon, California, New Jersey and Washington, DC, have passed laws in recent years banning it. In 2001, U.S. Surgeon General issued a report stating that “there is no valid scientific evidence that sexual orientation can be changed.” 7 Over recent years, the Pan American Health Organization, American Psychological Association and other organizations have concluded that the practice is unethical and should be banned. 8 9 10 11 7 b The Surgeon General's call to Action to Promote Sexual Health and Responsible Sexual Behavior”, A Letter from the Surgeon General U.S. Department of Health and Human Services, U.S. Department of Health and Human Services. 8 Jason Cianciotto and Sean Cahill (2006). Youth in the crosshairs: The third wave of ex-gay activism. New York: National Gay and Lesbian Task Force Policy Institute. 9 “Statement of the American Psychological Association (PDF). http://web.archive.org/web/20110806095055/http://www.apa.org/pi/lgbt/resources/policy/ex-gay.pdf APA.org. American Psychological Association. 10 August 2006. Archived 10 “Therapies to change sexual orientation lack medical justification and threaten health”. Pan American Health Organization (PAHO). Retrieved 26 May 2012.Archived 11 Pan American Health Organization, Regional Office of the World Health Organization; Press release May 17, 2012 “Therapies” to change sexual orientation lack medical justification and threaten health http://www.webcitation.org/67xKQyixE. Comment: Another commenter argued that we should point out the recent issuances of the Department of Education (ED) stating that the protections of title IX of the Education Act extend to gender identity and expression. Response: We agree that title IX of the Education Amendments of 1972 is an important statute. While the recent guidelines from ED are a new interpretation under the statute, title IX applies only to education programs. Services provided under Runaway and Homeless Youth grants in the three main service programs are not considered education programs, and therefore, title IX will rarely, if ever, apply to Runaway and Homeless Youth Programs. Title IX applies to the education programs (typically public or private schools, colleges, and universities receiving federal grants from the Department of Education) to which runaway or homeless youth are sometimes referred. Therefore, we did not make changes in response to this comment. Comment: Six commenters addressed the confidentiality and information disclosure requirements proposed in § 1351.19(b)(1). We had proposed this language unchanged from the present rule. Most of these commenters addressed potential disclosure to state law enforcement authorities or pursuant to court order, and argued that this would reduce the protection afforded to youth. Most commenters argued for eliminating or reducing the scope of our proposed language, which created an exception for cases in which release is “compelled by a court or statutory mandate.” These commenters seemed to assume that this would place youth in danger, and asserted that youth would be dissuaded from seeking help by what they perceived as weakened privacy protections. One of these commenters asked whether a subpoena would apply. Yet another commenter suggested that we create a different standard for youth served in the Basic Center and Transitional Living Programs, because the statutory text differs as to parental consent and whether consent must be informed. Response: We very much appreciate these thoughtful responses, which we have used to make important changes to the proposed language. Based on the comments received, we have modified the regulatory text to reflect the different statutory standards for youth served in the Basic Center and Transitional Living [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2016-30241. Public record. Not legal advice.