Designated Placement Requirements Under Titles IV-E and IV-B for LGBTQI+ Children

Federal RegisterApr 30, 2024

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1355

RIN 0970-AD03

Designated Placement Requirements Under Titles IV-E and IV-B for LGBTQI+ Children

AGENCY:

Children's Bureau (CB); 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 rule finalizes requirements under titles IV-E and IV-B for children in foster care who are LGBTQI+ (an umbrella term used in this regulation). The proposed rule was published on September 28, 2023. Federal law requires that state and tribal title IV-E and IV-B agencies (“agencies”) ensure that each child in foster care receives “safe and proper” care and has a case plan that addresses the specific needs of the child while in foster care to support their health and wellbeing. To meet these and other related statutory requirements, this final rule requires agencies to ensure that placements for all children are free from harassment, mistreatment, and abuse. The final rule requires that title IV-E and IV-B agencies ensure a Designated Placement is available for all children who identify as LGBTQI+ and specifies the Designated Placement requirements.

DATES:

This final rule is effective on July 1, 2024. Title IV-E and IV-B agencies must implement the provisions of this final rule on or before October 1, 2026.

FOR FURTHER INFORMATION CONTACT:

Rebecca Jones Gaston, Administration on Children, Youth, and Families, (202) 205-8618,

cbcomments@acf.hhs.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

Overview of Notice of Proposed Rulemaking

Overview of Final Rule

Legal Authority for the Final Rule

II. Background

LGBTQI+ Children in the Child Welfare System

Overrepresentation of LGBTQI+ Children in Foster Care

Impact of Family and Caregiver Behavior on LGBTQI+ Child Wellbeing

Experience of LGBTQI+ Children in Foster Care

Mental Health Needs of LGBTQI+ Children

Current Approaches To Meet the Needs of LGBTQI+ Children in Foster Care

III. Regulatory Provisions and Responses to Comments

Summary of Commenters

Summary of Comments From State and Local Child Welfare Agencies

Summary of Comments From Congressional Members

Summary of Comments From Advocacy Organizations, Providers, and Universities

Summary of Comments From Individual Commenters

Section by Section Discussion of Regulatory Provisions

Title and Definition of LGBTQI+

Section 1355.22(a) Protections Generally Applicable

Section 1355.22(b)(1) Designated Placements and Services for LGBTQI+ Children

Section 1355.22(b)(2) Process for Notification of and Request for Designated Placements

Section 1355.22(b)(3) Placement and Services Decisions and Changes

Section 1355.22(c) Process for Reporting Concerns About Placements and Concerns About Retaliation

Section 1355.22(d) Retaliation Prohibited

Section 1355.22(e) Access To Supportive and Age- or Developmentally Appropriate Services

Section 135.22(f) Placement of Transgender and Gender Non-Conforming Children in Foster Care

Section 1355.22(g) Compliance With Privacy Laws

Section 1355.22(h) Training and Notification Requirements

Section 1355.22(i) Protections for Religious Freedom, Conscience, and Free Speech

Section 1355.22(j) No Penalties for Providers That Do Not Seek To Qualify as Designated Placements

Section 1355.22(k) Severability

Section 1355.22(l) Implementation

Section 1355.22(m) No Effect on More Protective Laws or Policies

Section 1355.34(c) Criteria for Determining Substantial Conformity Comments on Cross-Cutting Issues

Kinship Caregivers

Impact of the Regulation on Foster Provider Availability and Participation

Youth Disclosure of LGBTQI+ Status

Research on LGBTQI+ Children in Foster Care

Nondiscrimination Provisions

Implementation Costs

Requests for Technical Assistance and Implementation Supports and Questions About Implementation and Compliance Monitoring

IV. Response to Comments Raising Statutory and Constitutional Concerns

First Amendment and Religious Freedom

Statutory Authority

Arbitrary and Capricious

Spending Clause

Federalism Principles

Nondelegation Doctrine

Major Questions Doctrine

Fulton v. City of Philadelphia

V. Implementation Timeframe

VI. Regulatory Impact Analysis

VII. Tribal Consultation Statement

I. Executive Summary

Overview of Notice of Proposed Rulemaking

On September 28, 2023 (88 FR 66752), HHS issued a notice of proposed rulemaking (NPRM) called

Safe and Appropriate Foster Care Placement Requirements for Titles IV-E and IV-B.

ACF proposed the NPRM to support states and tribes in complying with Federal laws that require that all children in foster care receive safe and proper care. In the NPRM, ACF proposed that it would require agencies to implement specific processes and requirements to ensure that children in foster care who identify as LGBTQI+ would be placed with foster care providers who were trained to meet their specific needs related to their sexual orientation and gender identity and who would facilitate access to age-appropriate services to support their health and wellbeing. The NPRM referred to these specially designated placements as “Safe and Appropriate” placements for LGBTQI+ youth. Under the proposed rule, agencies would be required to ensure that such placements were available for any child in foster care who identifies as LGBTQI+ and provided to any such child in foster care. However, the NPRM would not have required providers to become designated as such a placement for LGBTQI+ children. The NPRM also proposed agency procedures to ensure a child who identifies as LGBTQI+ would not experience retaliation—regardless of whether the child was in a specially designated “Safe and Appropriate” placement, or whether the child was placed with a foster care provider who had chosen not to seek such a designation.

The NPRM proposed that title IV-E/IV-B agencies would be required to notify specified children (including all children at or above the age of 14) about the availability of these placements, the process to request such a placement, and the process to report placement concerns. The NPRM also set forth specific steps for the placement of transgender, intersex, and gender non-conforming children in sex-segregated child care institutions and required specific training for title IV-E/IV-B agency caseworkers and supervisors on how to appropriately serve LGBTQI+ children.

Finally, the proposed rule explained that HHS would monitor a state agency's compliance with the requirement in proposed § 1355.22(a)(1) through the Child and Family Services

Reviews (CFSRs). As explained in the proposed rule, the CFSRs are a formal monitoring protocol in which the state's efforts to comply with title IV-E and IV-B program requirements are assessed at the case and systems level. No tribal title IV-E agency is currently subject to CFSRs because none has a sufficient number of children in foster care and children receiving in-home services for ACF to apply the onsite CFSR case sampling procedures.

Overview of Final Rule

In this final rule, ACF clarifies how title IV-E/IV-B agencies must meet title IV-E and IV-B statutory requirements to appropriately serve LGBTQI+ children in foster care.

ACF received a total of 13,768 comments on the NPRM and has carefully considered each comment. A summary of comments and responses are included in sections III and IV of this preamble. Based on comments received, ACF has made modifications to the final rule.

To address requests from many commenters for further clarity about the meaning of “safe and appropriate,” and its applicability to all placements, the final rule distinguishes between the requirement of a safe and appropriate placement, which is applicable to all children in foster care, and a Designated Placement for LGBTQI+ children, which is the term used in the final rule to describe providers who meet specified requirements described in the rule to serve as a designated provider for LGBTQI+ children. Because Federal law requires that every child in foster care receive “safe and proper” care and placement in the “most appropriate setting available,” ACF reiterates that

all

foster care placements must be safe and appropriate for

all

children—including LGBTQI+ children. This general protection that all foster care placements must be safe and appropriate reiterates existing statutory and regulatory requirements that title IV-E/IV-B agencies must meet to comply with Federal law for all children in foster care. This final rule specifies that as part of meeting the requirement to provide a safe and appropriate placement for all children in foster care, the title IV-E/IV-B agency must ensure that placements, including those for LGBTQI+ children, are free from harassment, mistreatment, and abuse, including related to a child's sexual orientation or gender identity.

As set forth in the NPRM, HHS recognizes that LGBTQI+ youth face significant disparities in the child welfare system. In order for LGBTQI+ youth to receive care that meets Federal statutory guarantees that each child in foster care will receive safe and proper care that is consistent with the best interest and special needs of the child, title IV-E/IV-B agencies must ensure LGBTQI+ children have access to specially designated placements that are prepared to meet their unique needs and create a supportive environment. This final rule refers to those specially designated placements as “Designated Placements.” The requirements of a Designated Placement are consistent with the requirements proposed in the NPRM for specially designated placements for LGBTQI+ children (which the NPRM referred to as “Safe and Appropriate” placements), with some clarifying text added. Recognizing that safe and proper treatment for LGBTQI+ children requires attention to certain particular harms and risks that this population faces, this final rule specifies that Designated Placement providers must have particular training and provide particular protections for LGBTQI+ children that may not be relevant or necessary for non-LGBTQI+ children.

The final rule does not require any provider to become a Designated Placement. Further, the rule specifies that nothing in the rule should be construed as requiring or authorizing a state to penalize a provider that does not seek or is determined not to qualify as a Designated Placement provider. It also says that nothing in this rule shall limit any State, tribe, or local government from imposing or enforcing, as a matter of law or policy, requirements that provide greater protection to LGBTQI+ children than this rule provides.

The rule requires that the title IV-E/IV-B agency ensure a Designated Placement is available for, and may be requested by, any child in foster care who identifies as LGBTQI+. In order to be considered a Designated Placement for an LGBTQI+ child, the placement must satisfy three conditions, each of which goes beyond the general requirements that apply to all placements. First, the provider must commit to establishing an environment that supports the child's LGBTQI+ status or identity. Second, the provider must be trained with the appropriate knowledge and skills to provide for the needs of the child related to the child's self-identified sexual orientation, gender identity, and gender expression. Third, the provider must facilitate the child's access to age- or developmentally appropriate resources, services, and activities that support their health and well-being. HHS has concluded that these conditions are generally necessary to effectuate the statutory promise of a safe and appropriate placement for children who are LGBTQI+ because of the extensive evidence of the specific needs LGBTQI+ children have which require more specialized support. This rule requires title IV-E/IV-B agencies to ensure that the totality of their child welfare system includes sufficient placements for LGBTQI+ children that meet each of these standards.

As explained further below, when making placement and services decisions related to an LGBTQI+ child, the title IV-E/IV-B agency must give substantial weight to the child's concerns or request for a Designated Placement in determining the child's best interests.

The final rule requires agencies to notify certain children about the availability of Designated Placements, the process to request one, and the process to report concerns about their current placement or about retaliation against them. Notification requirements apply to all children age 14 and over, as well as those under age 14 removed from their home due, in whole or part, to familial conflict about their sexual orientation, gender identity, gender expression, or sex characteristics; or if they have disclosed their LGBTQI+ status or identity; or whose LGBTQI+ status or identity is otherwise known to the agency. The final rule also requires that the title IV-E/IV-B agency ensure that LGBTQI+ children have access to age and developmentally appropriate services that support their needs related to their sexual orientation and gender identity or expression. This includes clinically appropriate mental and behavioral health care supportive of their sexual orientation and gender identity and expression, as needed.

A number of commenters emphasized that, in many cases, if a child requests services and a current placement chooses to accept them, that could make a current placement more appropriate for an LGBTQI+ child and prevent any need for a placement change. Other commenters raised concerns about the potential for disruptive placement changes as a result of the proposed rule. In response, the final rule recognizes that, in addition to requesting a change in placement to a Designated Placement, a child could also request that services be offered to stabilize their current placement. Moreover, if a child requests a Designated Placement, the final rule clarifies that to promote placement stability, the title IV-E/IV-B agency must first consider whether, if the current provider wishes to accept additional services, it would allow the current provider to voluntarily meet the conditions for a Designated Placement.

Promoting such stability is particularly important in cases where children are placed with kin, siblings, close to families of origin, and in family-like settings. In making the determination about the child's best interests, the agency is required to give substantial weight to the child's request. If the child's current provider elects to become a Designated Placement, in accordance with the case review system and protocols, the title IV-E/IV-B agency must regularly review the status of the placement to ensure it progresses towards meeting the relevant conditions. ACF expects this process will in some cases enable title IV-E/IV-B agencies to provide Designated Placements while preserving placement stability, particularly in settings where children are placed with kin, with siblings, in close proximity to families of origin, or in family-like settings as recommended by commenters.

The final rule also requires that the title IV-E/IV-B agency have a procedure to protect LGBTQI+ children in foster care from retaliation for disclosure of their LGBTQI+ status and/or identity, if they are reported or perceived to have LGBTQI+ status and/or identity, or for requesting a Designated Placement. It also requires training for title IV-E/IV-B agency caseworkers and supervisors on how to appropriately serve LGBTQI+ children and on how to implement the procedural requirements of the rule. The final rule requires title IV-E/IV-B agencies to ensure that agency contractors and subrecipients who have responsibility for placing children in foster care, making placement decisions, or providing services, as well as all placement providers, are informed of the procedural requirements of the rule.

The statute at 42 U.S.C. 671(a)(8) enumerates safeguards which restrict the use or disclosure of information concerning children in foster care. These critical safeguards ensure the privacy and confidentiality of children with very limited exceptions. Consistent with title IV-E and IV-B confidentiality requirements at 42 U.S.C. 671(a)(8) and 45 CFR 1355.21(a), 1355.30(p)(3), and 205.50, the final rule provides that agencies are prohibited from disclosing information about a child's LGBTQI+ status or identity except as provided by statute and that any such disclosure must be the minimum necessary to accomplish the legally-permitted purposes. In response to comments, the final rule clarifies the privacy and confidentiality protections for information related to an LGBTQI+ child's status or identity. The Children's Bureau will monitor a state agency's compliance through the CFSRs, a formal monitoring protocol in which the state's efforts to comply with title IV-E and IV-B program requirements are assessed at the case and systems level. No tribal title IV-E agency is currently subject to CFSRs because none has a sufficient number of children in foster care and children receiving in-home services for ACF to apply the onsite CFSR case sampling procedures. All requirements of the rule will be subject to the partial review process.

The final rule expressly provides that insofar as the application of any requirement under the rule would violate applicable Federal protections for religious freedom, conscience, and free speech, such application shall not be required. The rule does not require any provider to become a Designated Placement, and specifies that nothing in the rule should be construed as requiring or authorizing a state to penalize a provider that does not seek or is determined not to qualify as a Designated Placement from participation in the state's program under titles IV-E and IV-B. The final rule also clarifies that the rule does not limit any State, Tribal or local government or agency from imposing or enforcing as a matter of state, tribal or local law or policy, requirements that provide greater protection to LGBTQI+ children than this rule provides.

Legal Authority for the Final Rule

Titles IV-E and IV-B of the Social Security Act (the Act) require title IV-E/IV-B agencies to provide case plans for all children in foster care. Under section 475(1)(B) of the Social Security Act, 42 U.S.C. 675(1)(B), case plans must include a plan for assuring that the child receives safe and proper care and that services are provided to improve the conditions in the parents' home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care. The plan must also discuss the appropriateness of the services provided to the child under the plan. Agencies must also have case review systems through which they ensure that each foster child's case plan is “designed to achieve placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available and in close proximity to the parents' home, consistent with the best interest and special needs of the child[.]” (Section 475(5) of the Social Security Act, 42 U.S.C. 675(5)(A)) In order to receive title IV-E and IV-B funds, agencies must have plans approved by ACF that provide for case plans and case review systems that meet these statutory requirements (sections 471(a)(16) and 422(b) of the Social Security Act, 42 U.S.C. 671(a)(16) and 622(b)).

Additionally, in order to receive title IV-E funds, states and tribes must certify in their title IV-E plans that they will ensure that before a child in foster care is placed with prospective foster parents, the prospective foster parents “will be prepared adequately with the appropriate knowledge and skills to provide for the needs of the child [and] that the preparation will be continued, as necessary, after the placement of the child” (section 471(a)(24) of the Social Security Act, 42 U.S.C. 671(a)(24)). The Act also requires that agencies ensure that foster parents, as well as at least one official at any child care institution providing foster care, receive training on how to use and apply the “reasonable and prudent parent standard,” a “standard characterized by careful and sensible parental decisions that maintain the health, safety, and best interests of a child while at the same time encouraging the emotional and developmental growth of the child, that a caregiver shall use when determining whether to allow a child in foster care under the responsibility of the State to participate in extracurricular, enrichment, cultural, and social activities” (Social Security Act 471(a)(24) and (a)(10) and 475(10)(A), 42 U.S.C. 671(a)(24) and (a)(10) and 675(10)(A)).

The Act requires agencies to develop and implement standards to ensure that children in foster care placements are provided quality services that protect their safety and health (Social Security Act section 471(a)(22), 42 U.S.C. 671(a)(22)).

The Act authorizes the Secretary of Health and Human Services (the Secretary) to review state compliance with the title IV-E and IV-B program requirements. Specifically, the Act requires the Secretary to determine whether state programs are in substantial conformity with state plan requirements under titles IV-E and IV-B, implementing regulations promulgated by the Secretary and the states' approved state plans (section 1123A of the Social Security Act, 42 U.S.C. 1320a-2a).

Finally, the Act authorizes the Secretary to “make and publish such rules and regulations . . . as may be necessary to the efficient administration of the functions with which [the Secretary] is charged under [the Social Security Act].” (Section 1102 of the Social Security Act, 42 U.S.C. 1302)

II. Background

LGBTQI+ Children in the Child Welfare System

As the NPRM explained, a significant body of evidence demonstrates that LGBTQI+ children are overrepresented in the child welfare system and face poor outcomes in foster care.

Some studies cited below defined their scope as LGBTQ, LGBT, or Lesbian, Gay, and Bisexual (LGB) children or youth specifically. Where one of those studies is cited, this regulation uses the same acronym as the study itself.

Overrepresentation of LGBTQI+ Children in Foster Care

LGBTQI+ children are overrepresented in the foster care population. One recent confidential survey revealed that 32 percent of foster youth ages 12-21 surveyed report that they identify as having a diverse sexual orientation or gender identity.

Another large confidential survey found that 30.4 percent of foster children aged 10-18 identify as LGBTQ+.

A recent study using nationally representative survey data found that youth with a minority sexual orientation, such as lesbian, gay, and bisexual youth, are nearly two and a half times as likely as heterosexual youth to experience a foster care placement.

Institute for Innovation and Implementation at University of Maryland's School of Social Work and the National Quality Improvement Center on Tailored Services, Placement Stability, and Permanency for LBTQ2S Children and Youth in Foster Care (2021). Cuyahoga Youth Count: A Report on LBTQ+ Youth Experience in Foster Care,

https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf.

Baams, L., Russell, S.T., and Wilson, B.D.M. LGBTQ Youth in Unstable Housing and Foster Care, American Academy of Pediatrics, Volume 143, Issue 3, March 2019.

https://doi.org/10.1542/peds.2017-4211.

Fish, J., Baams, L., Wojciak, A.S., & Russell, S.T. (2019), Are Sexual Minority Youth Overrepresented in Foster Care, Child Welfare, and Out-of-Home Placement? Findings from Nationally Representative Data. Child Abuse and Neglect,

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7306404/.

A study published in 2016 of the population of youth who have been involved in both the foster care and juvenile justice systems found that LGBTQ+ juvenile-justice involved youth were three times more likely to have been removed from their home and twice as likely to have experienced being physically abused in their homes prior to removal than their non-LGBTQ+ juvenile-justice involved counterparts.

Irvine, Angela, and Canfield, Aisha.

The Overrepresentation of Lesbian, Gay, Bisexual, Questioning, Gender Nonconforming and Transgender Youth within the Child Welfare to Juvenile Justice Crossover Population,

24.2 A.m. U. J. Gender Soc. Pol'y & L., 243-261 (2016),

https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1679&context=jgspl.

LGBTQI+ children are overrepresented in the child welfare system because of a confluence of factors. Studies suggest that LGBTQ+ children face higher rates of parental physical abuse and are more likely to run away from home or be kicked out than their non-LGBTQ+ counterparts, often because of conflict over their sexual orientation or gender identity.

These experiences place LGBTQI+ children at greater risk of entering foster care and mean that many LGBTQI+ children enter foster care with complex needs and trauma related to the discrimination and stigma they have experienced because of their sexual orientation or gender identity. As a result of reviewing this research, and hearing from LGBTQI+ individuals with lived experience in foster care, we have developed this regulation to improve how title IV-E/IV-B agencies address the needs of this population.

Friedman, M., Marshal, M., Guadamuz, T., Wei, C., Wong, C., Saewyc, C., and Stall, R., 2011: A Meta-Analysis of Disparities in Childhood Sexual Abuse, Parental Physical Abuse, and Peer Victimization Among Sexual Minority and Sexual Nonminority Individuals American Journal of Public Health 101, 1481_1494,

https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2009.190009.

Pearson, J., Thrane, L., & Wilkinson, L. (2017). Consequences of runaway and thrown away experiences for sexual minority health during the transition to adulthood. Journal of LGBT Youth, 14(2), 145-171,

https://www.tandfonline.com/doi/full/10.1080/19361653.2016.1264909.

For a review of risk factors impacting children in foster care see Matarese, M., Greeno, E. and Betsinger, A. (2017). Youth with Diverse Sexual Orientation, Gender Identity and Expression in Child Welfare: A Review of Best Practices. Baltimore, MD: Institute for Innovation & Implementation, University of Maryland School of Social Work,

https://qiclgbtq2s.org/wp-content/uploads/sites/6/2018/05/LGBTQ2S-Lit-Review_-5-14-18.pdf.

ACF held two listening sessions with LGBTQI+ youth with lived experience in foster care on February 9, 2023, and December 18, 2023.

Impact of Family and Caregiver Behavior on LGBTQI+ Child Wellbeing

Research shows that the support LGBTQI+ children receive from their families and caregivers related to their sexual orientation or gender identity is highly predictive of their mental health and wellbeing. For example, a 2022 survey found the five most common ways that LGBTQ youth reported feeling supported by their parents or caregivers included having been welcoming to their LGBTQ friends or partners, talking with them respectfully about their LGBTQ identity, using their name and pronouns correctly, supporting their gender expression, and educating themselves about LGBTQ people and issues. That survey found that LGBTQ youth who felt high social support from their family in these ways reported less than half the number of suicide attempts than LGBTQ youth who experienced low or moderate social support from their family.

Another study quantified the negative impacts of family rejection of LGBTQ children, which can lead to greater representation in foster care.

The study found that family behaviors, including excluding LGBTQ children from family events and activities because of their identity, not letting their child learn about their LGBTQ identity, or trying to change their child's LGBTQ identity increased the risk of depression, suicide, illegal drug use, and other serious health risks. The study also found that family behaviors that support LGBTQ children, including standing up for their child when others mistreat them because of their LGBTQ identity, had positive outcomes, helped promote self-esteem, overall health, and protected against suicidal behavior, depression, and substance abuse. The study found that lesbian, gay, and bisexual young adults who reported high levels of family rejection during adolescence were more than eight times more likely to report having attempted suicide, nearly six times more likely to report high levels of depression, and more than three times more likely to use illegal drugs compared with their lesbian, gay, and bisexual counterparts from families that reported no or low levels of family rejection.

Studies found improved health outcomes in youth whose caregivers demonstrated supportive behavior towards the child's LGBTQ+ identity, including connecting the child to an LGBTQ+ adult role model.

Moreover, caregiver behavior

that is not affirming, including refusing to use a child's chosen name and pronouns, or ridiculing or name-calling because of the child's LGBTQ+ identity, contributes to increased risks for serious health concerns for the child, such as depression, suicidal thoughts, suicidal attempts, and illegal drug use.

The Trevor Project, 2022 National Survey on LGBTQ Youth Mental Health,

https://www.thetrevorproject.org/survey-2022/assets/static/trevor01_2022survey_final.pdf.

See Innovations Institute, University of Connecticut School of Social Work, Family Acceptance Project, and National SOGIE Center (n.d.).

Parents & Families Have a Critical Impact on Their LGBTQ Children's Health Risks & Well-Being

[Fact Sheet]. Data for the fact sheet is drawn from Ryan, C (2021)

Helping Diverse Families Learn to Support Their LGBTQ Children to Prevent Health and Mental Health Risks and Promote Well-Being,

San Francisco, Family Acceptance Project, San Francisco State University. Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009).

Family rejection as a predictor of negative health outcomes in white and latino lesbian, gay, and bisexual young adults.

Pediatrics, 123(1),

https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext.

Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009).

Family rejection as a predictor of negative health outcomes in white and latino lesbian, gay, and bisexual young adults.

Pediatrics, 123(1),

https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-Predictor-of-Negative-Health?redirectedFrom=fulltext.

Ryan, C (2021)

Helping Diverse Famiies Learn to Support Their LGBTQ Children to Prevent Health

and Mental Health Risks and Promote Well-Being

, San Francisco, Family Acceptance Project, San Francisco State University,

https://lgbtqfamilyacceptance.org/wp-content/uploads/2021/11/FAP-Overview_Helping-Diverse-Families6.pdf.

Ibid

Experience of LGBTQI+ Children in Foster Care

A meaningful body of research demonstrates that LGBTQI+ children in foster care face disproportionately worse outcomes and experiences than other children in foster care due to their specific mental health and well-being needs often being unmet. Further, evidence from qualitative studies, listening sessions, and Congressional testimony makes clear that many LGBTQI+ foster youth do not currently receive placements or services that are safe and proper, as required by statute.

For examples, see Weston Charles-Gallo testimony before the Ways and Means Committee Worker and Family Support Subcommittee Hearing on “Making a Difference for Families and Foster Youth,” May 12, 2021,

https://www.congress.gov/117/meeting/house/112622/witnesses/HHRG-117-WM03-Wstate-Charles-GalloW-20210512.pdf.

Creating Safer Spaces for Youth who are LGBTQ in Broward County, Florida: Collecting SOGIE Data for Life-Coaching Services. Vol. 96, No. 1, Special Issue: Sexual Orientation, Gender Identity/Expression, and Child Welfare (First of two issues) (2018), pp. 27-52 (26 pages),

https://www.jstor.org/stable/48628034.

Mountz, S., Capous-Desyllas, M., & Pourciau, E. (2018). `Because we're fighting to be ourselves:' voices from former foster youth who are transgender and gender expansive. Child Welfare, Suppl.Special Issue: Sexual Orientation, Gender Identity/Expression, and Child Welfare, 96(1), 103-125,

https://www.proquest.com/scholarly-journals/because-were-fighting-be-ourselves-voices-former/docview/2056448509/se-2.

ACF held two listening sessions with LGBTQI+ youth with lived experience in foster care on February 9, 2023, and December 18, 2023.

LGBTQI+ children in foster care report experiencing mistreatment related to their sexual orientation or gender identity. One study found that “one of the most consistent themes that LGBTQ youth in foster care have conveyed in focus groups and qualitative interviews is a tendency to be harassed, teased, and bullied by staff, peers, and [foster] care providers . . . LGBTQ youth are often excluded and rejected by their peers and caretakers . . . It is common for LGBTQ youth in group home and foster home settings to be isolated to their own bedroom or to their own wing of the house due to fears of placing them with youth of the same sex.”

McCormick, A., Schmidt, K., and Terrazas, S. (2017) LGBTQ Youth in the Child Welfare System: An Overview of Research, Practice, and Policy, Journal of Public Child Welfare, 11:1, 27-39, DOI: 10.1080/15548732.2016.1221368,

https://doi.org/10.1080/15548732.2016.1221368.

Children in foster care who identify as LGBTQI+ are more likely to be placed in congregate care settings (group homes and residential care rather than family like settings), experience multiple placements, and have adverse experiences in their placement than non-LGBTQI+-identifying youth.

One study found that LGBTQI+ youth in foster care are more likely to experience at least 10 foster care placements, with youth of color who are LGBTQ reporting the highest rates.

Wilson, B.D.M., & Kastanis, A.A. (2015). Sexual and gender minority disproportionality and disparities in child welfare: A population-based study. Children and Youth Services Review, 58, 11-17, and Bianca D.M. Wilson, Angeliki A. Kastanis, Sexual and gender minority disproportionality and disparities in child welfare: A population-based study, Children and Youth Services Review, Volume 58, 2015, Pages 11-17, ISSN 0190-7409,

https://doi.org/10.1016/j.childyouth.2015.08.016.

Poirier, J., Wilkie, S., Sepulveda, K. & Uruchima, T.,

Jim Casey Youth Opportunities Initiative: Experiences and Outcomes of Youth Who Are LGBTQ,

96.1 Child Welfare, 1-26 (2018),

https://www.proquest.com/docview/2056448464.

A 2021 study showed that children in foster care who identify as LGBTQ+ report a perception of poor treatment by the foster care system more frequently than their non-LGBTQ peers and feel less frequently that they can be themselves.

Children in foster care who identify as LGBTQI+ are less likely to report at least “good” physical and mental health and are less likely to have at least one supportive adult on whom they can rely for advice or guidance than their non-LGBTQI+ counterparts in foster care.

Matarese, M., Greeno, E., Weeks, A., Hammond, P. (2021). The Cuyahoga youth count: A report on LGBTQ+ youth's experience in foster care. Baltimore, MD: The Institute for Innovation & Implementation, University of Maryland School of Social Work,

https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf.

Poirier, J., Wilkie, S., Sepulveda, K. & Uruchima, T.,

Jim Casey Youth Opportunities Initiative: Experiences and Outcomes of Youth Who Are LGBTQ,

96.1 Child Welfare, 1-26 (2018),

https://www.proquest.com/docview/2056448464.

In one study that looked at LGBTQ+ status-related discrimination, 37.7 percent of children in foster care ages 12 through 21 who identify as LGBTQ+ reported poor treatment connected to their gender expression, sexual minority status, or transgender status. The study also showed that LGBTQ+ foster youth were more likely than their non-LGBTQ+ foster youth counterparts to have been hospitalized for emotional reasons or been homeless at some point in their life.

Wilson, B.D.M., Cooper, K., Kastanis, A., & Nezhad, S. (2014), Sexual and Gender Minority Youth in Foster care: Assessing Disproportionality and Disparities in Los Angeles, The Williams Institute, UCLA School of Law,

https://williamsinstitute.law.ucla.edu/wp-content/uploads/SGM-Youth-in-Foster-Care-Aug-2014.pdf.

Research has also demonstrated strong correlations between LGBTQI+ children who spent time in foster care and who later experienced housing instability, homelessness, and food insecurity. LGBTQI+ youth who reported past housing instability or a current homeless episode were six times more likely to have been in foster care than LGBTQI+ youth who did not report any housing instability.

DeChants, J.P., Green, A.E., Price, M.N., & Davis, C.K. (2021), Homelessness and Housing Instability Among LGBTQ Youth, West Hollywood, CA, The Trevor Project,

https://www.thetrevorproject.org/wp-content/uploads/2022/02/Trevor-Project-Homelessness-Report.pdf.

These many findings illustrate the need for child welfare personnel and foster parents to be trained on their critical role in the lives of LGBTQI+ children to avoid re-traumatization and further victimization of children.

Implementing strategic training and recruitment to meet the well-being needs of children who are LGBTQI+ is critical.

For a review of best practices for child welfare practitioners, see Matarese, M., Greeno, E. and Betsinger, A. (2017). Youth with Diverse Sexual Orientation, Gender Identity and Expression in Child Welfare: A Review of Best Practices. Baltimore, MD: Institute for Innovation & Implementation, University of Maryland School of Social Work,

https://qiclgbtq2s.org/wp-content/uploads/sites/6/2018/05/LGBTQ2S-Lit-Review_-5-14-18.pdf.

Mental Health Needs of LGBTQI+ Children

Research consistently shows that when LGBTQI+ youth experience supportive environments and services, they experience the same positive mental health outcomes as other youth.

However, research demonstrates that LGBTQI+ youth in foster care face significant mental health disparities that result from experiences of stigma and discrimination. A 2020 survey found that LGBTQ youth in foster care were more than two and a half times more likely to report a past year suicide attempt than LGBTQ youth who were not in foster care, with 35 percent of LGBTQ foster youth reporting

such an attempt. Reports of past year suicide attempt rates were even higher among LGBTQ+ foster youth of color (38 percent) and non-binary and transgender foster youth (45 percent).

Substance Abuse and Mental Health Services Administration (SAMHSA): Moving Beyond Change Efforts: Evidence and Action to Support and Affirm LGBTQI+ Youth. SAMHSA Publication No. PEP22-03-12-001. Rockville, MD: Center for Substance Abuse Prevention. Substance Abuse and Mental Health Services Administration, 2023,

https://store.samhsa.gov/sites/default/files/pep22-03-12-001.pdf.

The Trevor Project, 2022 National Survey on LGBTQ Youth Mental Health,

https://www.thetrevorproject.org/survey-2022/assets/static/trevor01_2022survey_final.pdf.

One area of particular concern for the mental health of LGBTQI+ youth in foster care is possible exposure to sexual orientation or gender identity or expression change efforts (so-called “conversion therapy”), as well as other actions to change, suppress or undermine a child's sexual orientation, gender identity, or gender expression. Such efforts are not supported by credible evidence and have been rejected as harmful by the American Academy of Child and Adolescent Psychiatry, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, and the National Association of Social Workers, among others.

The American Psychological Association (APA) has concluded that any behavioral health or other effort that attempts to change an individual's gender identity or expression is inappropriate and, further, can cause harm and/or suffering. After reviewing scientific evidence on gender identity change efforts, harm, affirmative treatments, and professional practice guidelines, the APA has affirmed gender identity change efforts are associated with reported harm, and the APA opposes these practices because of their association with harm.

Likewise, according to the APA, sexual orientation change efforts are “coercive, can be harmful, and should not be part of behavioral health treatment.

A literature review by Substance Abuse and Mental Health Services Administration (SAMHSA) discussed in its 2023 report, “Moving Beyond Change Efforts: Evidence and Action to Support and Affirm LGBTQI+ Youth” concluded that [sexual orientation change efforts] were not effective and may cause harm.” It found that no research has “demonstrated that gender identity change efforts are effective in altering gender identity.” In fact, the review found that “exposure to gender identity change efforts . . . is associated with harm, including suicidality, suicide attempt, and other negative mental health outcomes such as severe psychological distress.”

Substance Abuse and Mental Health Services Administration, FAQs About Finding LGBTQI+ Inclusive Providers,

https://www.samhsa.gov/behavioral-health-equity/lgbtqi/faqs.

American Psychological Association, APA Resolution of Gender Identity Change Efforts, February 2021,

https://www.apa.org/about/policy/resolution-gender-identity-change-efforts.pdf.

American Psychological Association, APA Resolution on Sexual Orientation Change Efforts, February 2021,

https://www.apa.org/about/policy/resolution-sexual-orientation-change-efforts.pdf.

Substance Abuse and Mental Health Services Administration (SAMHSA): Moving Beyond Change Efforts: Evidence and Action to Support and Affirm LGBTQI+ Youth. SAMHSA Publication No. PEP2203-12-001. Rockville, MD: Center for Substance Abuse Prevention. Substance Abuse and Mental Health Services Administration, 2023,

https://store.samhsa.gov/product/moving-beyond-change-efforts-evidence-and-action-support-and-affirm-lgbtqi-youth/pep22-03-12-001.

Current Approaches To Meet the Needs of LGBTQI+ Children in Foster Care

Current approaches for meeting the needs of LGBTQI+ children in foster care vary across states and tribes. Some agencies use, or are working towards implementing, child welfare practice models that address the specific needs of LGBTQI+ children, in line with existing Federal statutory requirements applicable to all children in foster care. In 2023, the Child Welfare Information Gateway issued a report on “Protecting the Rights and Providing Appropriate Services to LGBTQI+ Youth in Out-of-Home Care” (“Report”).

The Report provides a review of state laws, regulations, and policies related to reducing the negative experiences of any child who identifies as LGBTQI+, including laws and policies that support a child's ability to be safe and free from discrimination; have access to needed care and services; and be placed in “safe and supportive” placement settings with caregivers who have received appropriate training. The Report found that 22 states and the District of Columbia require agencies to provide youth who identify as LGBTQI+ with services and supports that are tailored to meet the specific needs of an LGBTQI+ child, such as providing clothing and hygiene products and referring to the child by the name and pronouns that align with their gender identity. The Report found that eight states and the District of Columbia offer developmentally appropriate case management that helps child welfare workers support LGBTQI+ youth. The Report found that fifteen states and the District of Columbia require training on LGBTQI+ issues for foster caregivers and related staff, including on how to communicate effectively and professionally with youth who identify as LGBTQI+, and education on current social science research and common risk factors for LGBTQI+ youth experiencing various negative outcomes.

Child Welfare Information Gateway, Protecting the Rights and Providing Appropriate Services to LGBTQIA2S+ Youth in Out-of-Home Care, 2023,

https://www.childwelfare.gov/topics/systemwide/laws-policies/statutes/LGBTyouth/.

However, the Report also demonstrates that a majority of title IV-E/IV-B agencies do not have laws, regulations, or policies to make appropriate services and supports or Designated Placements available to an LGBTQI+ child in foster care. Without such laws or policies, agencies may not adequately meet statutory requirements that guarantee that LGBTQI+ children in foster care, like all foster children, receive a safe and proper placement. In March 2022, ACF published Information Memorandum (IM) ACYF-CB-IM-22-01, which included suggestions on how agencies could best provide services and supports to each LGBTQI+ child who is at risk of entering or is in foster care.

ACF believes this final rule will help address the extensively documented risk factors and adverse outcomes for LGBTQI+ children in foster care.

Children's Bureau, Guidance for Title IV-B and IV-E Agencies When Serving LGBTQI+ Children and Youth, March 2, 2022,

https://www.acf.hhs.gov/cb/policy-guidance/im-22-01.

III. Regulatory Provisions and Responses to Comments

Summary of Commenters

The comment period for the NPRM was open for 60 days and closed on November 27, 2023. We received a total of 13,768 comments consisting of:

• Comments from 15 state or local child welfare agencies and governmental entities, such as state attorneys generals (AG) and a state civil legal aid office;

• Two letters representing 26 congressional members;

• Comments from 65 advocacy organizations, providers, and university institutes; and

• 13,536 comments from individuals, more than 12,000 of which consisted of two form letters, one in support and one in opposition.

We also received comments that were submitted on a different NPRM, were out of scope, or were duplicate submissions, and will therefore not be addressed. No comments were received by the deadline from Indian Tribes, Tribal organizations or consortiums, or organizations that represent Tribal interests. The comments are available in the docket for this action on

https://www.regulations.gov/docket/ACF-2023-0007/comments.

We reviewed and analyzed all of the NPRM comments and considered them in finalizing this rule.

Below is a summary of comments received. We include a detailed

response to comments in section IV of this preamble.

Summary of Comments by Commenter Type

Summary of Comments From State and Local Child Welfare Agencies

Four states or government entities expressed support: three were supportive of ACF's goal to improve care for LGBTQI+ children but also expressed concerns and recommended substantive changes to the proposal, and one expressed a neutral position. The supporters expressed that they are currently undertaking efforts to meet the needs of LGBTQI+ children in foster care, such as state-level non-discrimination laws, a foster children's bill of rights, resource groups for LGBTQI+ community outreach, requiring providers to demonstrate an ability to support LGBTQI+ children, and training for their workforce on cultural competency and sensitivity related to sexual orientation and gender identity. State agencies and governments who supported the rule expressed appreciation for the efforts of HHS to establish protections for LGBTQI+ children in foster care. They also supported some of the NPRM's requirements around assessing that placements meet the unique needs of LGBTQI+ children, reporting concerns with such placements, and placing children in sex-segregated child care institutions according to their gender identity.

Four states or government entities and the three letters representing 20 state attorneys general opposed the proposal. The state agencies and governments who opposed the rule stated a general belief that the NPRM creates a separate and distinct process for LGBTQI+ children that violates privacy and raised concerns related to the religious beliefs of providers. Additional concerns raised included that the NPRM would require an “upfront” conversation about a child's sexual orientation and gender identity instead of allowing a child to decide when to share this information with their case worker. Those states or entities who opposed the NPRM also argued that it creates a “cumbersome fix” for a problem that lacks clear definition while states are currently having issues finding enough providers for all children in foster care. They also argued that the NPRM's provisions would disincentivize families who may object to providing specially designated care for LGBTQI+ children from serving as foster parent providers and would “drive individuals and organizations of faith away.” They also expressed concerns that most congregate care providers are not currently equipped to meet the provisions around placing children according to their gender identity. Finally, there were objections to what they saw as unfunded burdens on the agencies to develop new trainings, modify licensing and placement rules, and revise case management systems to track placements, notifications, and other requirements in the NPRM.

Letters from State attorneys general raised legal concerns that the NPRM violates various statutory and constitutional requirements; these concerns are addressed in section IV.

Suggestions for revisions from state and local child welfare agencies and Government entities included:

• Expanding the approach proposed in the NPRM to apply the process to report placement concerns and provide notice to all children in foster care and not only to those specified in the NPRM, such as those over age 14;

• Providing clear guidance related to all of the rule's requirements and specifically the treatment of kin placements;

• Providing more funding to establish or enhance services for LGBTQI+ children within the states; in rural areas; and for recruitment, retention, and training of child welfare workers and foster care providers; and

• Replacing specific terms or phrases to broaden or provide flexibility to certain requirements, such as replacing “retaliation” with “discrimination” and replacing “age-appropriate” with “developmentally appropriate.”

Summary of Comments From Congressional Members

Two sign-on letters from a total of 26 congressional members expressed opposition to the NPRM. They generally expressed a belief that the NPRM imposes mandates on a subset of children based exclusively on the child's gender identity and sexual orientation while there are no Federal policies that define “safe and proper care” for other children with unique characteristics, such as those living with a disability. They argued that the proposed rule would dissuade families of faith from being foster parents, thus impacting availability of foster care placements and that the training requirements would impact availability of caseworkers. They also expressed concern that the proposed rule will impose “significant financial and administrative burdens” on title IV-E agencies. They expressed concerns about the NPRM's requirements for transgender children and that placing children according to their gender identity could result in children being placed in settings “they find uncomfortable and invasive or, at worst, unsafe.”

Summary of Comments From Advocacy Organizations, Providers, and Universities

Of the 65 advocacy organizations, providers, and university institutions that commented, 34 were supportive of the Department's goal to improve care for LGBTQI+ children but also recommended substantive changes to the proposal. Seven expressed support without recommending changes to the proposal, and 24 opposed.

Those organizations, providers, and university institutions who supported the rule without making changes concurred with the research summarized in the NPRM that demonstrates the complex challenges faced by LGBTQI+ children in foster care and agreed that the NPRM would help prevent discrimination and retaliation against LGBTQI+ children by allowing them to express their identities without fear of discrimination. They argued that the NPRM balances the exercise of religion with the need to ensure child wellbeing and represents an essential step towards creating an inclusive and supportive child welfare community. Some of the providers who commented expressed support for the NPRM and outlined the programs, policies, and procedures that they currently undertake to assist LGBTQI+ children in foster care. These practices included training kin caregivers and families of origin on affirming care, helping youth identify lasting affirming connections, having a mix of residential facilities for children, and training for facilities staff.

The 34 advocacy organizations, providers, and university institutes that expressed general support but also concerns with the NPRM's requirements appreciated ACF's commitment to ensuring that LGBTQI+ children in foster care are protected from harm. They agreed that LGBTQI+ children are overrepresented in the child welfare system and appreciated that ACF's summary of research documents the discrimination and challenges LGBTQI+ children in foster care face.

However, some of the advocacy organization and providers that commented expressing overall support also raised concerns about the approach of the NPRM and some stated that it was vague, lacking clarification at various decision-making points, and would negatively impact the availability of providers, specifically kin and religious

providers. Commenters raised concerns over freedom of religion and the legality of the NPRM's proposed requirements. Several organizations argued the NPRM as drafted could harm, instead of help, LGBTQI+ children in foster care. Specific concerns about the NPRM raised by these commenters include that the proposed rule added a layer of bureaucracy on child welfare agencies; may present a burden for kin caregiver providers to meet; creates a “two-tiered system” where non-LGBTQI+ children have an expectation of safety anywhere, but for LGBTQI+ children only certain placements are “safe and appropriate”; places the onus on children to request a placement change, requiring them to disclose their identity when they may not feel comfortable doing so; did not explicitly contain anti-discrimination policies; lacked additional funding to implement the rule's requirements; and questioned whether CFSR would be the best mechanism for monitoring. As with all comments noted in these summaries, these concerns are addressed in the comment and response section that follows.

A number of the commenters who opposed the NPRM said that, while they agreed that every child in foster care should feel safe and be in a hostility-free environment, they were concerned that the NPRM only applied to LGBTQI+ children. Those that opposed generally argued the NPRM infringes upon religious liberties, questioned whether it was legal in its approach, and stated it minimized the contributions of faith-based providers. Some providers who submitted comments said the NPRM would have “unintended consequences” such as exacerbating the placement shortage. They also argued the NPRM was overly broad and vague, for example stating that not defining “hostility, mistreatment, and abuse” was “deliberate” to enable labeling providers as unsafe for “simply disagreeing with the state's so-called `appropriate' method for caring for LGBT children.” They expressed concern that the NPRM would preclude “reasonable efforts” to help children think through their “current feelings and assumptions” arguing that foster parents should be free to offer their views. They also expressed concerns that “age-appropriate services and supports” could require gender-affirming care for transgender minors, which they argued creates various risks for children and should not be provided. Some commenters said that the NPRM's provision to place children according to their gender identity would “threaten girls' privacy” and that requiring use of a youth's chosen pronouns is a violation of free speech. A few commenters suggested instead creating a certification process for providers who have undergone training to be particularly supportive and affirming for LGBTQI+ children in foster care, such as something similar to having training to be a therapeutic foster care placement.

Summary of Comments From Individual Commenters

As noted earlier, we received approximately 13,536 comments from individuals, more than 12,000 of which consisted of two form letters. Of those, over 1,700 form letters expressed support, and over 10,000 form letters expressed opposition. Additionally, over 100 non-form letters expressed support, over 1,300 non-form letters expressed opposition, and 25 non-form letters expressed a neutral position. In general, the supportive commenters agreed that LGBTQI+ children are overrepresented in foster care, applauded HHS for requiring agencies to maintain enough safe and appropriate placements for LGBTQI+ children, and expressed their belief that this rule would be a “huge step forward” in keeping children safe. They also agreed that LGBTQI+ foster children should not be subjected to abuse or discrimination, including by placements that practice “conversion therapy.” Some commenters stated that agencies have no policies that protect LGBTQI+ children in foster care and that the proposals in the NPRM will create important mandates for agencies and providers. Others expressed that ensuring that providers are trained and equipped with skills to provide for a child's needs regarding sexual orientation and gender identity is the “next step in improving the well-being of the LGBTQI+ youth in foster care.” Supportive commenters asked who will define “safe and proper care.”

Commenters who expressed opposition expressed a belief that the approach taken in the NPRM would harm, rather than help, children in foster care. They argued that it would disqualify most faith-based providers and label people of faith and religious organizations as “unsafe” and “inappropriate.” The individuals and anonymous commenters who opposed the NPRM expressed concerns that the proposal would reduce the number of available providers, exacerbate the placement shortage, and discourage religious families and individuals from becoming foster parents or seeking employment in the child welfare profession. There were also a substantial number of commenters who appeared to misunderstand or misinterpret the NPRM's provisions, including a substantial number of comments discussing the appropriateness or lack thereof of gender-affirming care for children. These comments are outside the scope of the rule because this rule does not establish any particular standard of medical care or require that anyone receive any particular medical services.

The 25 commenters who expressed neutral positions shared personal stories of their experience with LGBTQI+ children or foster care, views on child rearing, or generally that placements should be free from hostility and mistreatment.

Section by Section Discussion of Regulatory Provisions

We respond to the relevant comments we received in response to the NPRM in this section-by-section discussion.

Title and Definition of LGBTQI+

In the proposed rule we proposed the title of § 1355.22 to be “Placement requirements under titles IV-E and IV-B for children who identify as lesbian, gay, bisexual, transgender, queer or questioning, intersex, as well as children who are non-binary or have non-conforming gender identity or expression.” The proposed rule used the terms “LGBTQI+ status” and “LGBTQI+ identity” in various locations to refer to LGBTQI+ children.

Comments:

Some commenters encouraged ACF to amend the rule to explicitly include other identities—such as children who are Two Spirit—to be as inclusive as possible and provide clarity for providers. Some commenters encouraged ACF to explicitly include children with a variation in sex characteristics in addition to intersex children, as not all such children identify as intersex. Other commenters encouraged ACF to include protections based on “LGBTQI+ identity” in addition to “LGBTQI+ status” to provide maximum clarity about which children are entitled to Designated Placements.

Response:

ACF agrees that addressing the needs of Two Spirit youth in the child welfare system is an important part of this regulation. ACF also agrees with the importance of providing clarity to title IV-E/IV-B agencies and providers about the meaning of the term “LGBTQI+.” For the purposes of this rule, the term refers to children who identify as lesbian, gay, bisexual, transgender, queer or questioning, intersex, as well as children who are non-binary, Two-Spirit, or have non-

conforming gender identity or expression, all of whom are referred to under the umbrella term of LGBTQI+ for this regulation.

For streamlining purposes, ACF updated the final rule's regulatory text to read “LGBTQI+ children (including children who are lesbian, gay, bisexual, transgender, queer or questioning, and intersex).” The word “including” clarifies that the umbrella term LGBTQI+ includes children who are non-binary, Two-Spirit, or have non-conforming gender identity or expression as well.

We also agree with commenters that the use of both “LGBTQI+ status” and “LGBTQI+ identity” offers greater clarity. The term “LGBTQI+ status” is frequently used in reference to protecting LGBTQI+ individuals from discrimination, harm, and mistreatment based on their “LGBTQI+ status.” Protecting a child from mistreatment based on their “LGBTQI+ status” would include protections should the child disclose their LGBTQI+ identity, should a third party identify a child as LGBTQI+, or should the child be perceived as having an LGBTQI+ identity. Other sections of the NPRM provided protections to children based on their “LGBTQI+ identity.” The term “LGBTQI+ identity” is frequently used when a person self-identifies as LGBTQI+. For this final rule, ACF uses the term “LGBTQI+ status or identity,” and any reference to LGBTQI+ children is intended to include both children with LGBTQI+ status and LGBTQI+ identity. For brevity, ACF has revised the title of this final regulation to be “Designated Placement requirements under titles IV-E and IV-B for LGBTQI+ children.”

In regard to questions about children with variations in sex characteristics, ACF acknowledges that not all children with variations in sex characteristics self-identify with the term intersex but believes that the term LGBTQI+ provides sufficient clarity that the rule's protections apply to such children.

Final Rule Change:

ACF updated the title of the regulation to “Designated Placement requirements under titles IV-E and IV-B for LGBTQI+ children” and updated the rule text to read “LGBTQI+ children (including children with lesbian, gay, bisexual, transgender, queer or questioning, and intersex status or identity).”

Section 1355.22(a) Protections Generally Applicable

In § 1355.22(a)(1) of the proposed rule, ACF proposed to require that title IV-E/IV-B agencies ensure that a safe and appropriate placement is available for and provided to all children in foster care, including each LGBTQI+ child in foster care. The proposed rule referred to specially designated placements for LGBTQI+ children in foster care as “Safe and Appropriate” placements. The NPRM proposed that a “Safe and Appropriate” placement for an LGBTQI+ child would be a placement in which (1) the provider will establish an environment free of hostility, mistreatment, and abuse based on the child's LGBTQI+ status; (2) the provider is required to be trained on the appropriate knowledge and skills to provide for the needs of the child related to the child's self-identified sexual orientation, gender identity, and gender expression; and (3) the provider will facilitate the child's access to age-appropriate resources, services, and activities that support their health and well-being. The NPRM further clarified that providers would not be required to be “Safe and Appropriate” as the rule does not compel any particular provider to seek a special designation to provide supportive care to LGBTQI+ children.

Comments:

Numerous commentors, including those who supported and opposed the requirements of the proposed regulation, provided recommendations for using clearer terminology in the final rule.

Some commenters suggested that every child is already entitled to a safe and appropriate placement under Federal child welfare law, and that the final rule should clarify that this requirement applies to all children in foster care, not just to children in specially designated placements for LGBTQI+ children.

A number of commenters were opposed to applying the protections in paragraph (a) of the NPRM only to LGBTQI+ children for various reasons, including that it could appear that LGBTQI+ children are provided protections not guaranteed to others. Another commenter stated that there are no other Federal policies that define how a state must provide “safe and proper care” to children of other unique circumstances.

Many commenters expressed concern with the terminology “safe and appropriate” placements, interpreting that such a placement was only available to LGBTQI+ children. One commenter expressed the belief that using the term “safe and appropriate” permits the state to place the child with caregivers who are merely tolerant of the child's sexual orientation or gender identity rather than in a home that is fully supportive. Commenters stated the rule does not go far enough to affirm children, and that the “free from hostility, mistreatment, and abuse” threshold was insufficient.

A number of commenters recommended that the final rule should require all placement providers to meet the requirements to be a safe and appropriate placement, unless they obtain a waiver based on a religious objection. Other commenters argued that unless all placement providers are required to be supportive, some LGBTQI+ foster children will not receive the benefit of such placements because they are not comfortable disclosing their identity to their caseworker.

Conversely, many commenters wrote that the proposed rule relies on a false assumption that only placements that support a child's LGBTQI+ identity are safe and proper. A commenter explained that the proposed rule would create a two-tiered system for both foster families and child-placing agencies in which consideration is given to homes that promote a liberal view of sexuality and gender. Commenters stated that this could particularly impact providers with religious beliefs and viewpoints that oppose same-sex marriage and believe that there are only two genders, for example. One commenter stated that, absent clear definitions and parameters for a safe home, foster families who hold certain religious convictions are at risk of being inappropriately deemed unsafe. One commenter stated that a foster family should not have to agree with a child's beliefs and that the foster parent's belief regarding sexuality and gender identity does not compromise their ability to provide safe and appropriate care for non-LGBTQI+ children.

Response:

ACF appreciates commenters' views and suggestions. ACF agrees that the terminology used in the NPRM, which referred to placements that are specially designated for LGBTQI+ children as “Safe and Appropriate,” needed clarification.

First, consistent with comments received, ACF confirms that Federal law requires all foster care placements to be safe and appropriate. ACF did not intend to suggest otherwise with the terminology it used in the NPRM. The agency sought to clarify how these Federal statutory requirements should be met in the context of LGBTQI+ children who, as the preamble to this rule demonstrates, have specific needs related to placements and services. One important aspect of a safe and appropriate placement for all children is that the placement be free of harassment, mistreatment, and abuse, and at 45 CFR 1355.22(a), we have incorporated regulatory language

making clear that this requirement applies to all children in all placements, including LGBTQI+ children. We discuss the change to using the term “harassment” rather than the term “hostility”—the term we had employed in the NPRM—below.

Second, ACF acknowledges the concerns of commenters that families who do not meet or seek to meet specified requirements to serve as a designated provider for LGBTQI+ children could be mislabeled as “unsafe” under the terminology of the proposed rule. ACF acknowledges the particular concerns of faith-based providers and families of faith who serve as foster families. We appreciate the vital role that many families and providers of faith play in the child welfare system, and ACF is committed to upholding Federal legal protections for religious exercise, free speech, or conscience as further discussed in the “Response to Comments Raising Statutory and Constitutional Concerns” section of this preamble.

In response to these concerns, HHS has revised the terminology used in the final rule. The rule now uses the phrase “Designated Placements” as shorthand to refer to providers that are specially designated to serve LGBTQI+ children because they have made a set of commitments and undergone training to better meet the needs of LGBTQI+ children. State and Tribal agencies must have available a sufficient number of these placements as part of their responsibilities to satisfy the statutory requirement that all children in foster care have access to a safe and appropriate placement.

ACF disagrees with commenters who asserted that placements that affirm the identity of LGBTQI+ children are not beneficial for the child. As described in the introductory section of this preamble addressing Mental Health Needs of LGBTQI+ Youth, an extensive body of research consistently shows that when LGBTQI+ youth experience supportive environments and services, they experience the same positive mental health outcomes as other youth. Further, evidence from studies, listening sessions, and Congressional testimony makes clear that many LGBTQI+ foster youth do not currently receive placements or services that are safe and appropriate, as required by statute. In view of the data, ACF disagrees with the commenter's view that supportive placements are not necessarily desirable for safe and appropriate placement of children.

Comments:

Multiple commenters asked for clarification of what specific requirements would apply to placement providers (

i.e.,

foster family homes, child care institutions) that do not choose to become Designated Placements for LGBTQI+ children. Commenters asked that ACF provide examples of what such providers would and would not be required to do. For example, some commenters vocalized the importance of allowing placement providers to talk with children about their own feelings, and to have the ability to offer alternative viewpoints to LGBTQI+ children. Conversely, many commenters also suggested that the rule be expanded to require that all foster parents should be able to meet the needs of any child who enters their home to ensure that all children, including those who identify as LGBTQI+, are able to thrive in care.

Response:

As noted above, ACF appreciates the opportunity to clarify that all children in foster care are entitled to safe and appropriate care under Federal law, regardless of whether they are LGBTQI+ or not, and if they are LGBTQI+, regardless of whether they are in a Designated Placement. Titles IV-E and IV-B of the Act provide protections that are designed to ensure that while in foster care, all children receive “safe and proper care” (Social Security Act section 475(1)(B), 42 U.S.C. 675(1)(B)). Specifically, as part of its title IV-E and IV-B plans, an agency must develop a case plan for each child in foster care that, among other things, assures that the child receives “safe and proper” care and “address(es) the needs of the child while in foster care” (

Id.

). This statutory process includes a “discussion of the appropriateness of the services that have been provided to the child under the plan” (

Id.

). Similarly, the title IV-E/IV-B case review system requires that the agency have procedures for assuring that each child has a case plan designed to achieve placements in the most appropriate setting available, consistent with the best interests and special needs of the child (Social Security Act sections 422(b), 471(a)(16), 475(1)(B), and 475(5), 42 U.S.C. 622(b), 671(a)16), and 675(5)). The responsibility to develop and implement foster children's case plans lies with the child welfare agency. Child welfare agencies assign foster children to placement providers in accordance with their case plans. These decisions are individualized and take many aspects of a child's circumstances into account. These general protections for safe and appropriate foster care placements apply to all placements and all children.

ACF appreciates the opportunity to further clarify what these general statutory provisions require. These statutory terms, which apply to all placements, at a minimum mean that the placement must be free from harassment, mistreatment, and abuse—including related to a child's sexual orientation, gender identity, or LGBTQI+ status. In this final rule, we use the term “harassment” in place of the term “hostility” used in the proposed rule. We agree with the concern, articulated by commenters, that the term “hostility” is insufficiently clear to provide guidance to providers. By using the term “harassment,” we seek to clarify that the general protections focus on the provider's conduct; a provider will not violate this rule simply because of the view or beliefs the provider may have or by good-faith and respectful efforts to communicate with LGBTQI+ children about their status or identities. Under its settled meaning in the law, the concept of harassment requires conduct that is sufficiently severe or pervasive to create an unsafe or hostile environment based on the child's characteristics.

See, e.g., Oncale

Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 78 (“When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated.”) (citation omitted).

Of course, children in foster care are especially vulnerable and rely on their providers to provide a supportive and protective environment. Protecting LGBTQI+ children from harassment, mistreatment, or abuse in all foster care placements is of particular importance given the vulnerability of these children. For example, as described in the preamble to this rule, a significant body of evidence demonstrates a connection between the risk that a LGBTQI+ child will consider or attempt suicide and the conduct and treatment of their caregivers towards the child's sexual orientation or gender identity. A 2009 study cited above showed that “LGB young adults who reported higher levels of family rejection during adolescence were 8.4 times more likely to report having attempted suicide [and] 5.9 times more likely to report high levels of depression” compared with children of families of low or no such behaviors.

Application of the legal

definition of harassment must necessarily attend to this context.

See Oncale,

523 U.S. at 81(1998) (determination of harassment “requires careful consideration of the social context in which particular behavior occurs and is experienced by its target”).

Ryan, C., Huebner, D., Diaz, R.M., & Sanchez, J. (2009).

Family rejection as a predictor of negative health outcomes in white and latino lesbian, gay, and bisexual young adults.

Pediatrics, 123(1),

https://publications.aap.org/pediatrics/article-abstract/123/1/346/71912/Family-Rejection-as-a-

Predictor-of-Negative-Health?redirectedFrom=fulltext.

Harassment does not include an isolated hurtful remark or action. But it can include deprivation of key resources.

See id.

at 650-651 (actionable harassment exists when it keeps “female students from using a particular school resource—an athletic field or a computer lab, for instance”). Conduct need not physically deprive an individual of such a resource to constitute harassment; harassment includes conduct that so undermines and detracts from the victims' . . . experience [with the program], that the victim[s] are effectively denied equal access to [the program's] resources and opportunities.”

Id.

at 651.

Harassment, mistreatment, or abuse of any child in foster care is impermissible in any placement. A provider that harasses a child about that child's religious beliefs or practices violates the general guarantee that all foster placements must be safe and appropriate. Similarly, a provider that harasses a child about that child's LGBTQI+ status or identity violates the same guarantee.

In response to commenters who sought clarity about what conduct would or would not be permissible in placements that had not sought designation as a Designated Placement, ACF appreciates that some providers, like some caregivers, parents, and kin, may struggle to understand an LGBTQI+ child's identity, or have questions or concerns about a child's wellbeing upon learning that a child in their care is LGBTQI+. Good-faith and respectful efforts to engage children appropriately do not constitute harassment, mistreatment, or abuse. However, though the inquiry must be fact specific, providers can cross the line into harassment, mistreatment, or abuse if they are found to have engaged in behaviors such as punishing the child, subjecting the child to harsher rules, or excluding the child from community activities because they are LGBTQI+; or disparaging the child, calling them shameful, or using slurs or derogatory language because they are LGBTQI+. Such conduct can also constitute prohibited retaliation as outlined in paragraph (d) of this rule.

ACF understands that many providers will be learning over time how to best engage LGBTQI+ children. As discussed below at

Section 1355.22(b)(3) Placement and Services Decisions and Changes,

ACF recognizes that some providers may be willing to accept and benefit from additional resources and training in order establish a supportive environment for an LGBTQI+ child. ACF will provide technical assistance and guidance to agencies to support training and resources for providers who desire such training. ACF again notes that good-faith and respectful efforts to communicate with LGBTQI+ children about their status or identity do not constitute harassment, mistreatment, or abuse.

Additionally, consistent with the proposed regulation, this final rule requires that the title IV-E/IV-B agency ensure that no LGBTQI+ child experience retaliation in any placement, including those that are not Designated Placements. Revisions to the rule's nonretaliation provisions are described below. Accordingly, if a placement provider were to engage in (or attempt to engage in) retaliation against an LGBTQI+ child, the title IV-E/IV-B agency must take steps to protect the child from such retaliation. Depending on the circumstances and child's wishes, those steps could include moving the child to a new Designated Placement.

ACF reiterates that the final rule does not directly regulate the actions of individual foster care providers, as title IV-E/IV-B agencies are responsible for ensuring that each placement the agency makes meets requirements that it is safe and appropriate. As with all provisions of this rule, caseworkers who make individualized placement decisions about each child in foster care will make case-by-case determinations about which placement is in the best interest of the child to implement the requirements of Federal statutory protections as well as this rule.

ACF reiterates that this rule does not prohibit individuals and organizations from continuing to participate as foster care providers if they do not wish to serve as Designated Placements. Although states and tribes must have sufficient Designated Placements for LGBTQI+ children, the final rule does not require any placement to meet the requirements of a Designated Placement. The fact that a given provider has not sought to become a Designated Placement is not evidence that the provider has engaged in harassment, mistreatment, or abuse. We have added a new provision at § 1355.22(j), which states that nothing in this rule requires or authorizes a State to penalize a provider in the state's titles IV-E and IV-B program because the provider does not seek or is determined not to qualify for the status of a Designated Placement under this rule.

Consistent with the NPRM, this rule also requires that placement providers who have not chosen to become Designated Placements for LGBTQI+ children are informed of the procedural requirements to comply with the rule, including the non-retaliation provision, described below.

Comment:

Many commenters said the proposed rule did not define the terms “hostility,” “mistreatment,” and “abuse” and sought clarity on their meaning. One commenter suggested the final regulations provide greater specificity about what actions by providers/social workers cannot be permitted because they undermine, rather than create safe and appropriate spaces for, LGBTQI+ and other children.

Response:

As described elsewhere in this preamble, we are clarifying that as part of meeting the requirement to provide a safe and appropriate placement for all children in foster care, the title IV-E/IV-B agency must ensure that placements, including those for LGBTQI+ children, are free from harassment, mistreatment, or abuse. As we explain above, we now use the term “harassment” in place of the term “hostility” used in the NPRM in response to requests from commenters for greater clarity. Applying the “harassment, mistreatment, or abuse” test advances the goal of providing a safe environment to children while ensuring that agency staff and foster care providers will not violate those general protections simply for holding any view or belief or for good-faith and respectful efforts to communicate with LGBTQI+ children about their status or identity. Since those requirements and all of the rule's retaliation requirements apply to all foster care placements, they also necessarily apply to all placement providers, including Designated Placements. We note, as well, that the final rule's non-retaliation provision is not limited to providers. Thus, similar actions by caseworkers would also be prohibited by this rule. And because the general protections apply to all children, this final rule prohibits harassment, mistreatment, or abuse even when not directed against a child based on LGBTQI+ status or identity. For example, harassment of a child because of their religious beliefs or cultural practices would violate those general statutory protections. For further discussion of these issues, we refer the reader to the beginning of this section.

Final Rule Changes:

We have revised the final rule so that 45 CFR 1355.22(a) now provides that as part of meeting the requirement to provide a safe and appropriate placement for all children in foster care, the title IV-E/IV-B agency must ensure that placements, including those for LGBTQI+ children, are free from harassment, mistreatment, or abuse.

Section 1355.22(b)(1) Designated Placements and Services for LGBTQI+ Children

The NPRM preamble explained that title IV-E/IV-B agencies should have a sufficient number of placements specially designated to serve LGBTQI+ children throughout their foster care system to meet the requirement of the proposed rule to ensure that a safe and appropriate placement is available for and provided to each LGBTQI+ child in foster care.

Comments:

Several commenters asked for clarification on preamble language regarding “sufficient placements.” For the determination of “sufficient” placements, they expressed concern that, in their view, the NPRM preamble failed to clearly articulate how agencies must determine whether their networks would include enough providers. Commenters cautioned that depending on how sufficient numbers are calculated, educational continuity and keeping children in their communities could be undermined. Commenters also stated the proposed rule failed to clarify how different placement types would be factored into determinations of sufficient numbers of providers. One commenter emphasized the need for geographic representation of placements.

Response:

As noted above, the final rule clarifies that all providers must be safe and appropriate for all children. Title IV-E/IV-B agencies need to have sufficient Designated Placements to be responsive to the needs of LGBTQI+ children. Consistent with the proposed rule, this final regulation does not prescribe a specific number of Designated Placements that will be needed in a given child welfare program. Title IV-E/IV-B agencies are in the best position to determine the number of such placements that will be required to meet their local needs and comply with this regulation. Accordingly, the regulation does not mandate a specified number of placements, but rather mandates what the title IV-E/IV-B agency must do to provide access to Designated Placements. The title IV-E/IV-B agency will need to determine the number of placements needed to meet these requirements. In recognition of the diversity of programs and local contexts across the Nation, we are not seeking to establish a uniform, standard requirement that applies to all jurisdictions and populations. Each state and tribe is unique and best suited to identify their placement needs and how to meet the provision in the final rule based on considerations such as variation in population; geographical disbursement including rural, remote, and urban populations; and the number of children in need of foster care placements, among other consideration. ACF encourages agencies to use data, modeling, and case work to estimate how many Designated Placements may be needed. ACF will provide further technical assistance to states and tribes to help them achieve this requirement. As we discuss below, this final rule clarifies that nothing in this rule shall be construed to require or authorize a state or tribe to penalize a provider in the title IV-E and IV-B program because the provider does not seek or is determined not to qualify as a Designated Placement under this rule.

The final rule also clarifies the requirements for a placement to be considered a Designated Placement for LGBTQI+ children. First, in addition to the protections generally applicable, the provider must commit to establish an environment that supports the child's LGBTQI+ status or identity. We have added the term “commit” to reflect that assent to this designation will be documented by title IV-E/IV-B agencies and in recognition that current placements, working toward designation as part of a placement stabilization plan, may express their commitment while working to establish the environment as described in the rule. The criteria for Designated Placements include provider training as discussed below. Finally, a Designated Placement must facilitate the child's access to age- or developmentally appropriate resources, services, and activities that support their health and well-being.

Provider Training for Designated Placements

The proposed rule clarified that for a placement to be considered specially designated for an LGBTQI+ child, the provider must be “trained to be prepared with the appropriate knowledge and skills to provide for the needs of the child related to the child's self-identified sexual orientation, gender identity, and gender expression.” In the NPRM, we requested comments on how ACF can ensure training curriculums for foster care providers are of high quality.

Comment:

Many commenters responded with recommendations on how ACF can ensure training curricula for foster care providers are of high quality. Many commenters recommended ACF work with LGBTQI+ youth with lived experience and other experts in the community to develop core elements that should be presented in high quality trainings. One commenter recommended that trainings and measures of success should be reviewed and evaluated by LGBTQI+ youth with lived experience. Several commenters recommended ACF ensure trainings are certified by organizations with experience serving LGBTQI+ children. One commenter recommended ACF develop a set of guidelines for placement providers' trainings to ensure the trainings address a robust set of topics. One commenter recommended ACF create a few standards for key concepts that must be included in trainings, at minimum, and discuss how to create supportive and inclusive environments for all sexual orientations and gender identities. The commenter also recommended trainings provide strategies on how to ask and respond to questions around these topics in a respectful way and that therapists who work with LGBTQI+ youth in care should provide evidence-based services and care. One commenter recommended all training include information about the critically important role of faith for the mental health of LGBTQI+ youth and that ACF should urge states to approve diverse training options, including at least one approved training sequence designed by and for theologically conservative faith-based providers. Several commenters recommended provider training should be offered annually for new resource families or as an opportunity for a training “refresher” and ideally should be coupled with coaching opportunities to reinforce training content. One commenter recommended training modules be updated and provide for recurring trainings as the agency best sees fit and that ACF should put in place a system to implement a data check to understand the effectiveness of these training programs. Several commenters recommended ACF highlight programs that have been developed to work with existing resource families and recommend that States provide similar programs to placement providers who are assessed as not yet supportive to LGBTQI+ children. One commenter recommended ACF should provide specific funding and grant opportunities to assist states and tribes to provide appropriate

training pertaining to LGBTQI+ children in foster care.

Many commenters had suggestions about foster care provider training, such as requiring that providers receive relevant trainings and resources that enable and empower them to care for LGBTQI+ children; agencies offer the same provider training requirements for kinship caregivers, and offer expanded provider training to ensure that all kinship and foster caregivers are equipped to be safe and appropriate, regardless of the child's sexual orientation or gender identity; and incentives are offered to agencies using evidence-based trainings. Another commenter said that being designated to provide care for LGBTQI+ children should not be solely defined by the receipt of specific provider training and instead be determined by an ability and willingness of the caregiver to meet the child's needs. Commenters also requested clarity on what constitutes “appropriate knowledge” and “skills,” recommending ACF work with faith-based groups on provider training development, while others suggested not to be overly specific. Other commenters disagreed saying that there is no “official federal training available” for providers and that since foster care training curriculum are administered by state and county authorities, enforcing specific provider training requirements would violate individual state statues. Other commenters suggested adding information about professional standards as part of the provider training requirement.

One commenter suggested expanding the rule to include training for all service providers, including attorneys and guardians ad litem.

Response:

We considered all of the recommendations and comments. We have revised the final rule in paragraph (b)(1)(ii) to add additional specificity to the training for foster care providers. In addition to requiring the training to reflect evidence, studies, and research about the impacts of rejection, discrimination, and stigma on the safety and wellbeing of LGBTQI+ children, the final rule also requires the training to provide information for providers about professional standards and recommended practices that promote the safety and wellbeing of LGBTQI+ children. Those recommended practices should reflect evidence-based supportive behaviors shown to improve health and other outcomes for LGBTQI+ children and exclude behaviors shown to lead to poor health outcomes for LGBTQI+ children. ACF acknowledges that training materials could be improved through engagement with people with lived experience, and strongly encourages title IV-E/IV-B agencies to do so, though we have not chosen to make it a requirement. So long as the requirements in this final rule are satisfied, ACF will defer to states and tribes on how to best incorporate these additional requirements into their training. ACF will provide technical assistance to help agencies implement this requirement.

The final rule does not extend these training requirements in paragraph (b)(1)(ii) beyond the foster care provider, as the training is focused on becoming a Designated Placement for a child. ACF acknowledges title IV-E/IV-B agencies should offer training and services to kinship caregivers and foster families that opt to become Designated Placements for LGBTQI+ children, particularly those currently placed with them. The final rule in § 1355.22(b)(2) states that services and training can be offered to current providers, including kin, to help them become a Designated Placement if they wish and thus promote sibling unification, and retaining sibling, kinship, family, and community ties. ACF acknowledges that training on supportive services for LGBTQI+ children could be beneficial for guardians ad litem and attorneys. However, requirements for training attorneys are beyond the scope of this rule.

Other Comments on Designated Placement Requirements

Comment:

One commenter wanted the rule to more clearly specify who is included in the term placement provider.

Response:

Placement providers are foster family homes, child care institutions, or other facilities that provide foster care to children, consistent with the definition of foster care at 45 CFR 1355.20.

Comment:

One commenter requested clarification on whether short-term, emergency placements are exempt from the Designated Placement requirements for an LGBTQI+ child if a designated provider is unavailable. One commenter expressed the need to afford flexibility for states to offer exceptions or alternatives for LGBTQI+ children placed with kin caregivers when it is in the best interest and desire of an LGBTQI+ child.

Response:

The issues raised by the commenters regarding short-term or emergency placements are related to agency decision making and provider licensing which are determined at the local level. State and Tribal title IV-E/IV-B agencies that have placement and care responsibility of children who are in foster care have the authority to make placement decisions for the child. In doing so, they must consider the Federal statutory and regulatory requirements for foster care placements and must balance all of these factors in making a placement decision on a case-by-case basis. This requirement includes relative placement preferences, jointly placed sibling placement requirements, least restrictive placement requirements, and requirements for placements in close proximity to the parent's home and the child's school of origin. However, we are not revising the final rule to provide specific exemptions. ACF encourages title IV-E/IV-B agencies to work with foster care placement providers who wish to become Designated Placements, including relative placements to build their capacity to provide such placements through coaching, training, and education. As noted above, ACF encourages agencies to use case work, data, and modeling to ensure that there are enough placements as needed in specific geographic areas, which will help ensure that children are placed in proximity to the parent's home and child's school of origin. Ensuring adequate numbers of Designated Placements will also help increase the likelihood that LGBTQI+ children will be placed with siblings.

Comment:

Several commenters had suggestions or requested clarification regarding the terms used in this provision of the NPRM. Several organizations suggested using the term “developmentally appropriate” instead of “age-appropriate.”

Response:

We agree with commenters that in addition to age-appropriate resources, services and activities, a child should have access to developmentally appropriate resources, services, and activities. Therefore, we are revising the final rule to read “age- or developmentally- appropriate.” This is to be consistent with the definition in section 475(11)(A) of the Act (Social Security Act Section 475(11)(A), 42 U.S.C. 675(11)(A)).

Final Rule Changes:

The final rule provides requirements for a placement to be considered a Designated Placement, which goes beyond the general protection of an environment free of harassment, mistreatment, and abuse, which is now described as safe and appropriate. To be considered Designated, a placement must meet the criteria described in § 1355.22(b)(1).

Section 1355.22(b)(2) Process for Notification of and Request for Designated Placements

Section 1355.22(b)(2) describes the process the title IV-E/IV-B agency must implement to notify an LGBTQI+ child that they may request a Designated Placement or request that services be offered to their current placement to become a Designated Placement. In the NPRM, where the provision to request a placement for an LGBTQI+ child was located at § 1355.22(a)(2), ACF proposed that title IV-E/IV-B agencies must implement a process by which a child identifying as LGBTQI+ may request a placement specially designated as meeting specified requirements for LGBTQI+ children, and that the title IV-E/IV-B agency must consult with such child to provide an opportunity to provide input into that placement. The NPRM proposed that this process must safeguard the privacy and confidentiality of the child. It also proposed to require that title IV-E/IV-B agencies notify all children over the age of 14 that specially designated placements for LGBTQI+ children are available, as well as providing such notification to children under the age of 14 who have been removed from their home due to familial conflict about their LGBTQI+ status, and children who have disclosed their LGBTQI+ identity or whose LGBTQI+ identity or status is known to the agency. The NPRM further proposed that the notice should be provided in an age-appropriate manner both verbally and in writing, and that the notice must inform the child about how they request a safe and appropriate placement.

Notification Requirements—Frequency, Age, and Developmental-Appropriateness

Comment:

Many commenters provided recommendations on how often the agency must provide the child notification and recommended providing multiple notifications to children. Suggestions included providing notice at least two times a year; continuously; at regular intervals; and no less than twice per year. One commenter stated that children should be notified within 72 hours of entering foster care that having a safe and appropriate foster placement is a right. They also recommended that youth should acknowledge receipt of rights at case hearings and placement changes and that rights be publicly posted in congregate care facilities, and accessible to youth in foster homes.

Response:

There are existing mandated requirements for agencies to provide care and services to children in foster care. This includes conducting an initial case plan within 60 days of a child's removal and conducting monthly home visits with the child. These are opportunities that agencies already have in their ongoing work that will allow them to provide proper notifications in accordance with the rule; while the rule specifies information that must be included in the notice, agencies are not required to establish a new process to notify children that Designated Placements are available. ACF intends to clarify opportunities to ensure children are informed through technical assistance. We encourage agencies to use all opportunities available to ensure children are well informed. Therefore, we have determined not to make these changes in the final rule. However, ACF takes this opportunity to clarify that in response to comments about enforcement of the rule's provisions, the final rule provides for the notification requirement to be monitored through the CFSRs, a formal monitoring protocol in which the state's efforts to comply with title IV-E and IV-B program requirements are assessed at the case and systems level. This change is discussed below under

Section 1355.34(c) Criteria for Determining Substantial Conformity.

Comment:

Numerous commenters recommended that the notice of availability of safe and appropriate placements should be provided to all children regardless of age, rather than the age of 14 as specified in the NPRM. One organization commented that notice at age 14 is too late and should be provided at an earlier age. Another suggested varying ages at which to begin offering notifications.

Response:

ACF appreciates the comments about the importance of providing notification to children. In the final rule, ACF has kept the age requirement for notification to all children 14 and over, in alignment with the existing case plan requirement in section 475(1)(B) of the Social Security Act.

Moreover, in addition to requiring agencies to notify all children age 14 and over, the final rule also requires agencies provide notice about Designated Placements to those under age 14 who are removed from their home due, in whole or part, to familial conflict about their sexual orientation, gender identity, gender expression or sex characteristics; have disclosed their LGBTQI+ status or identity; or whose LGBTQI+ status or identity is otherwise known to the agency. It also requires that the title IV-E/IV-B agency ensure that LGBTQI+ children have access to age- or developmentally appropriate services that support their needs related to their sexual orientation and gender identity or expression. This includes clinically appropriate mental and behavioral health care supportive of their sexual orientation and gender identity and expression as needed.

Comment:

Many commenters recommended that the NPRM requirement for the written and verbal notice to be provided in an “age-appropriate” manner be revised. They recommended that age appropriate be changed to “developmentally appropriate.”

Response:

We agree with commenters that in addition to providing written and verbal notice in an age-appropriate manner, the notice should also be provided in a developmentally appropriate manner. Therefore, we are revising the final rule to read “age- or developmentally appropriate.” This is to be consistent with the definition in section 475(11)(A) of the Social Security Act, 42 U.S.C. 675(11)(A).

Requested Placements

Comment:

A number of commenters stated that while the NPRM proposed that the agency must notify the child specified in the NPRM that a safe and appropriate placement was available, they understood it as written that a safe and appropriate placement is only available if the child requested the placement. Some commenters indicated that this would be too heavy a burden on the child to self-identify and to initiate the request, which would exacerbate negative health outcomes for these children. One commenter recommended removing all of paragraph (a)(2) in the NPRM because if all placements are safe and appropriate as required, there would be no need to request one, and others commented that they support this section as proposed.

Response:

As we have previously discussed, the final rule expressly provides that all placements, including placements for LGBTQI+ children, must be safe and appropriate. However, we have clarified that because not all placements will be Designated Placements, the rule provides for a process by which a Designated Placement may be offered or requested. HHS intends that there are multiple processes through which Designated Placements may be provided to an LGBTQI+ child, including when initiated by a child's request.

Final Rule Changes:

The final rule provides for a process by which an LGBTQI+ child may request a Designated Placement or request that

their current placement be offered services. The final rule maintains the proposed rule's minimum age of notification of 14 and over, and continues to require agencies to provide notice about Designated Placements to those under age 14 who are removed from their home due, in whole or part, to familial conflict about their sexual orientation, gender identity, gender expression, or sex characteristics; have disclosed their LGBTQI+ status or identity; or whose LGBTQI+ status or identity is otherwise known to the agency. In addition, the final rule adds a requirement that the notice given to children must also inform the child of non-retaliation protections and the process whereby a child may report concerns about retaliation.

Section 1355.22(b)(3) Placement and Services Decisions and Changes

Comments:

A number of commenters raised concerns about the impact that they believed the proposed regulations would have on the placement stability of LGBTQI+ youth. One commenter raised a concern that if only some foster care providers are designated safe and appropriate for LGBTQI+ children, it may result in decreased placement stability for LGBTQI+ children. Other commenters stated that the result of an LGBTQI+ child requesting a placement that affirms their identity will be to move to another provider, and that such placement changes cause upheaval and trauma for children. Some commenters said that LGBTQI+ youth, especially those who are in placements with their siblings, would avoid requesting Designated Placements for fear of being separated from their siblings, community, or school.

Response:

ACF agrees that placement stability is a vitally important component of a youth's experiences and outcomes in foster care, and that placement stability is impacted by a foster care provider being able to meet a child's individual needs. ACF further acknowledges that research shows that LGBTQI+ youth in the child welfare system have lower levels of placement stability compared with other youth.

https://doi.org/10.1016/j.childyouth.2015.08.016.

Poirier, J., Wilkie, S., Sepulveda, K & Uruchima, T.,

Jim Casey Youth Opportunities Initiative: Experiences and Outcomes of Youth Who Are LGBTQ,

96.1 Child Welfare, 1-26 (2018),

https://www.proquest.com/docview/2056448464.

In response to concerns about placement stability, we note first that the placement stability of LGBTQI+ youth will be positively impacted by a title IV-E/IV-B agency's success in ensuring there are sufficient Designated Placements to meet the needs of LGBTQI+ youth. As clarified in the NPRM, IV-E agencies may claim Federal funds under title IV-E for certain activities to comply with this rule, including recruiting and training providers to be Designated Placements.

ACF further acknowledges that one consequence of an LGBTQI+ child requesting a Designated Placement may be a move to a new placement and that in certain instances, the child's first preference may not be a change in placement but rather that steps be taken to make the current placement more supportive of the child's LGBTQI+ status or identity. Accordingly, we revised the final rule in several important ways.

First, we have made clarifications at § 1355.22(b)(2) related to notification requirements. In addition to the requirement that title IV-E/IV-B agencies implement a process under which a child may request a Designated Placement, this final rule further requires that this process also enables a child to request services for a

current

placement to receive services to become supportive. Agencies must provide notice that the child can request a placement change or services for a current placement, and the process the agency will use for responding to the request. The final rule also clarifies that the title IV-E/IV-B agency's process for considering such a request must provide the child with an opportunity to express their needs and concerns.

Second, we have added a new section at § 1355.22(b)(3) which provides further clarity on how the title IV-E/IV-B agency should reach placement and services decisions. The final rule clarifies that when making placement and service decisions related to an LGBTQI+ child, the title IV-E/IV-B agency shall give substantial weight to the child's expressed concerns or requests when determining the child's best interests. As noted in the final regulatory text, placement decisions should give substantial weight to the child's requests; determining a child's best interests will require that the title IV-E/IV-B agency engage directly with the child to understand their needs and concerns.

The final rule further provides that, to support placement stability, when a request for a placement change or services is made, the title IV-E/IV-B agency must first determine whether actions could be taken to support the current provider in voluntarily meeting the conditions of a Designated Placement, and if the provider is willing to meet the conditions of a Designated Placement, requires that the title IV-E/IV-B agency use the case review process to regularly review the provider's compliance in providing a supportive environment. We believe this clarification in the final rule will allow more LGBTQI+ children to be safely served in their current placement.

Under these revised provisions, if an LGBTQI+ child expressed their preference to receive a Designated Placement, but their current provider had not sought to become a Designated Placement provider, the title IV-E/IV-B agency would be required to consider whether actions could be taken to support the current provider in meeting the conditions of a Designated Placement to maintain the child's placement stability, if the provider wishes to become such a placement. For example, the current placement provider could be offered the opportunity to receive the training needed to become a Designated Placement to better meet the needs of the LGBTQI+ child. Other steps to promote placement stability could include—consistent with child's best interests and the willingness of the provider—more regular visits by the caseworker, or counseling for the child alone or in conjunction with the placement provider to address any challenges.

As noted throughout this rule, we reiterate that nothing in this rule compels any provider to seek to become a Designated Provider. In the case of a provider who is not interested in becoming a Designated Placement for an LGBTQI+ child currently in their care, the title IV-E/IV-B agency could meet the child's needs by placing the child with a Designated Placement provider or, consistent with the child's preference for placement stability and the agreement of the current provider, by providing training and services necessary to make the current placement more supportive. To further support the placement stability of LGBTQI+ children, we reiterate that this rule's prohibition on retaliation encompasses unwarranted placement changes for a child because of their LGBTQI+ status or identity.

Compliance with some requirements of this rule will be assessed through the CFSRs and all requirements are subject to the partial review process. In pertinent part, the CFSRs assess the degree to which States have the necessary array of placement options available to serve the needs of all children who come into their care. The

reviews also assess state performance in ensuring placement stability.

Section 1355.22(c) Process for Reporting Concerns About Placements and Concerns About Retaliation

Section 1355.22(3) of the proposed rule described the process the agency must implement for LGBTQI+ children to report concerns about a placement that does not meet the requirements of this rule and concerns about retaliation. The NPRM proposed to require that title IV-E/IV-B agencies implement a process for LGBTQI+ children to report concerns about any placement that fails to meet the requirements of a placement that is specially designated for LGBTQI+ children. The NPRM proposed that this process must safeguard the privacy and confidentiality of the child. Like the requirement that certain children be notified that specially designated placements for LGBTQI+ children are available, the NPRM proposed that the same children be notified verbally and in writing about the process to raise concerns about a placement. Finally, the NPRM proposed to require that IV-E agencies “respond promptly” to a child's reported concern, consistent with the agency's timeframes for investigating child abuse and neglect reports, depending on the nature of the child's report.

Comment:

Several commenters expressed their views on how an agency should respond to the child's placement concerns, when to make a placement change, and foster family home licensing considerations, such as placing the license on a hold while the family engages in training and is reassessed.

Response:

State and Tribal title IV-E/IV-B agencies have placement and care responsibility for children who are in foster care, and this allows such agencies to make placement decisions for each child on a case-by-case basis. In reference to whether there should always be a placement change when a child expresses a concern, we want to clarify that, absent a safety concern or the specific desires of the child, placement changes should not necessarily be the first course of action. As noted above, the final rule requires that before initiating any placement changes, the title IV-E/IV-B agency must consider whether additional services and training would allow the current provider to meet the conditions for a Designated Placement, and whether the current provider is willing to meet the conditions of a Designated Placement. Thus, with the child's consent and subsequent agreement by the provider, we encourage the agency to offer the foster care provider supports including training, coaching, and information to enable the provider to provide an affirming home for the child. This approach should be prioritized when a child wishes to remain in their placement for reasons of sibling unification, proximity to family and community of origin and schools, wish to remain in a family-like setting, or generally to avoid placement disruption. Where caregivers agree to accept such services and training, we encourage agencies to work in an ongoing way to build caregivers' capacity to provide this kind of care for LGBTQI+ children.

Prompt Response to Concerns

In the NPRM, we requested public comment on whether and how best to define “promptly” as applied to the requirement at proposed paragraph (a)(3)(iii) that an agency respond promptly to a child's reported concerns.

Comment:

Many commenters offered suggestions on how to define “promptly” as it applies to this paragraph. Many commenters responded with several suggestions recommending “promptly” be defined as immediate and that these instances should be investigated sooner than current agency timelines for investigating reports of abuse or neglect. Many included a timeframe for response in their recommendation to occur within two hours to 24 hours. Several expressed that any reported concerns should be handled with urgency as the LGBTQI+ population is already identified in the rule as having significant risk. Other commenters recommended ACF not define the term, leave flexibility to states to define it, and suggested that these requests be handled by an independent entity, such as an ombudsman.

Response:

ACF has reviewed all of the suggestions, and, while we appreciate the comments, we are not defining “promptly” in the final rule. ACF is not mandating a uniform timeframe for agencies to respond to a placement concern as that would be unnecessary when agencies already have established protocols to respond to reports of child abuse and neglect investigations. As such, the title IV-E/IV-B agency will determine the timeframe for responding promptly to a child's report consistent with their existing timelines for agency child abuse and neglect reporting and investigating procedures commensurate with the seriousness of the child's concern. When there is reasonable cause to believe that a child is in imminent danger, most agencies require investigations to be initiated immediately, in as little as two hours and not longer than 24 hours, after the report is made. As part of its existing monitoring process, ACF may evaluate whether a title IV-E/IV-B agency is responding to all concerns promptly, including that those raised by LGBTQI+ children are responded with the same level of promptness as it responds to other comparable concerns. While this final rule does not dictate a timeline for response, a title IV-E/IV-B agency that treated concerns raised by LGBTQI+ children about the safety of their placements with lesser priority than concerns raised by other youth may be subject to the partial review process to determine compliance with this requirement.

Other Comments on Reporting Concerns About a Placement

Comment:

Several commenters suggested that ACF monitor and enforce these provisions for responding to placement concerns to the maximum extent possible.

Response:

These provisions in the final rule are monitored as part of the partial review process. This means that if ACF becomes aware of a potential non-compliance issue with the provisions in § 1355.22, it will initiate a “partial” review, which is a review of state and tribal title IV-E/IV-B plan requirements (45 CFR 1355.33(e)). If there is evidence of non-conformity identified through the partial review process, the state/tribal title IV-E/IV-B agency will be required to enter into a program improvement plan and make necessary changes to come into compliance. Therefore, since there is already an established protocol for monitoring, no changes to the final rule are warranted.

Comment:

Several commenters recommended adding a requirement to engage LGBTQI+ youth with lived experience in process development. One commenter recommended that it should be required for agencies to have an independent forum for reporting, investigating, and resolution of reported concerns, such as a Foster Care Ombudsman. One commenter recommended that agencies provide updates about the “investigation” to youth and allow options for ongoing communication to keep youth updated such as phone call or email.

Response:

We considered these comments and determined to retain the provision as proposed in the NPRM to allow agencies to design their notification processes. Instead, technical assistance is available to states and tribes as warranted in implementing in a manner consistent with best practices, including by engaging youth with lived

experience. Therefore, we are not making changes to the final rule.

Comment:

Many organizations recommended adding that the written and verbal communication needed to be developmentally appropriate, rather than age appropriate.

Response:

We agree with commenters that in addition to developmentally-appropriate services, a child should have access to developmentally-appropriate communications. Therefore, we are revising the final rule to read that “notice must be provided in an age- or developmentally appropriate manner, both verbally and in writing.” This is to be consistent with the definition in section 475(11)(A) of the Social Security Act, 42 U.S.C. 675(11)(A).

Final Rule Changes:

As part of the final rule, ACF clarifies that, absent a safety concern or the specific desires of the child, placement changes should not necessarily be the first course of action. The final rule requires the process for reporting concerns about a child's placement also include reports about retaliation. In addition, it adds that a child should receive developmentally-appropriate notice both verbally and in writing of the process for reporting concerns about a placement or retaliation.

Section 1355.22(d) Retaliation Prohibited

In the proposed rule, ACF proposed to require that title IV-E/IV-B agencies must have a procedure to ensure that no LGBTQI+ child in foster care experiences retaliation for disclosing their LGBTQI+ identity, for requesting a specially designated placement for LGBTQI+ children, or for reporting concerns that their current placement does not meet their needs related to being LGBTQI+. The proposed rule described examples of what would be considered retaliatory under the rule.

Comment:

Many commenters strongly supported the NPRM's prohibition on retaliation and said that such protections were important for the safety, health, and wellbeing of LGBTQI+ children who face heightened risks when they disclose their sexual orientation or gender identity.

Other commenters raised concerns about the retaliation prohibition and said that religious providers could be accused of retaliation for merely disagreeing with a child's sexual orientation or gender identity. As discussed in Section IV, a couple of commenters asserted that concepts included in the proposed rule that relate to a child's identity place individuals and organizations of faith at risk of being accused of retaliation that would unconstitutionally infringe on their free exercise of religion.

Response:

ACF appreciates commenters' views on the rule's prohibition on retaliation. We agree with commenters who observed that LGBTQI+ children are particularly vulnerable to retaliation when their sexual orientation or gender identity is disclosed. We also acknowledge the concerns of some providers who worried about being accused of retaliation when engaged in conduct related to their faith or beliefs. As we address more fully below in our response to the First Amendment and Religious Freedom comments, ACF is committed to upholding Federal protections for free speech, religious exercise, and conscience for all providers and children in the child welfare system. In particular, we have developed this rule in a manner that respects these guarantees. The Department will apply Federal protections for religious exercise, free speech, and conscience, including by applying the Department's regulatory protections for seeking religious accommodations.

In response to requests for clarification, we are first more clearly specifying the actions for which retaliation is impermissible. The proposed rule had referred to retaliation for the child disclosing their LGBTQI+ identity; requesting a placement specially designated for LGBTQI+ children (which the final rule now refers to as Designated Placement); or for reporting concerns about the safety and appropriateness of their current placement. To this list, the final rule makes clear that the intended reference is to both LGBTQI+ status and identity, and further specifies that retaliation is impermissible for having a child's LGBTQI+ status or identity disclosed by a third party; for the child being perceived to have an LGBTQI+ status or identity; or for the child's request or report related to requirements for placements or services.

The proposed rule had specified that retaliation includes unwarranted placement changes including unwarranted placements in congregate care facilities; restriction of access to LGBTQI+ peers; or attempts to undermine, suppress, or change the sexual orientation or gender identity of a child; or other activities that stigmatize a child's LGBTQI+ identity. In response to commenters' requests for greater clarity on what actions would constitute retaliation, the final rule provides additional detail about such actions and how they interact with other provisions of the rule, such as the prohibition on harassment, mistreatment, or abuse in all foster placements.

Comment:

Some commenters expressed concern that, in their opinion, the proposed rule did not provide sufficient reassurance that LGBTQI+ children would be protected from retaliation, whether for disclosure of their status or identity, requesting a new placement, or reporting a placement that is not safe and appropriate. One commenter expressed concern that absent Federal protections “caseworkers could further harm children by engaging in discriminatory behavior,” and shared the example of a caseworker blaming a child for mistreatment they experienced as a result of their status or identity. This commenter was also concerned that the rule “fails to protect all families, including kin, and current and prospective foster and adoptive parents” from discrimination in their interactions with the child welfare system. Finally, this commenter noted that absent Federal protections, officials might use retaliatory child protection investigations, such as a state investigating a parent because of bias toward the child's or the parent's disclosed or perceived identity or status.

Response:

We agree with commenters that it is important that children have strong protections against retaliation for having disclosed their LGBTQI+ identity or status and having requested a new placement or reporting a placement that is not safe and appropriate. As a result, we have made several adjustments in the final rule.

First, we specify in paragraph (d)(2)(v) that the title IV-E/IV-B agency will be considered to have retaliated against a child if it uses information about the child's LGBTQI+ identity or status to initiate or sustain a child protection investigation or discloses information about the child's LGBTQI+ identity or status to law enforcement in any manner not permitted by law. While both of these actions already fall under the definition of retaliation in paragraph (d)(2)(iv), which includes “disclosing the child's LGBTQI+ status and/or identity in ways that cause harm or risk the privacy of the child,” we believe it is appropriate to name these actions directly in order to give assurance to LGBTQI+ children that such actions are not allowable.

Second, in paragraph (d)(2)(vi), we clarify that the prohibition on retaliation includes retaliation against current or potential caregivers (including foster parents, pre-adoptive parents, adoptive parents, kin caregivers, and birth families) for supporting a child's LGBTQI+ status or identity. We believe

this is necessary to ensure that children can benefit from the protections of this rule, as we are concerned that retaliation against a supportive adult could be used in an effort to prevent or discourage an LGBTQI+ child from requesting or receiving a Designated Placement or necessary services. While we do not define all of the actions that could constitute “retaliation” in this context, as it may vary significantly depending on circumstances, we understand it to mean any harmful action taken against a current or potential caregiver for an LGBTQI+ child because of their support of that child's LGBTQI+ identity or status.

Third, § 1355.22(b)(3)(iii) of the final rule includes a requirement that children receiving notice of the availability of Designated Placements also be provided notice of the retaliation protections in this final rule and describe the process by which a child may report a concern about retaliation. The title IV-E/IV-B agency must provide this information in an age- and developmentally appropriate manner, verbally and in writing, and must safeguard the confidentiality of the child. At a minimum, the agency must provide the notice about this process to: (1) all children age 14 and over, and (2) children under age 14 who have been removed from their home due to familial conflict about their sexual orientation, gender identity, gender expression or sex characteristics or have disclosed their LGBTQI+ status and/or identity, or it is otherwise known to the agency. In addition, the agency must respond promptly to the child's concerns, consistent with the agency's timeframes for investigating child abuse and neglect reports.

Finally, in response to comments raising concerns about enforcement of these provisions and safeguards on keeping a child free from retaliation, ACF welcomes the opportunity to clarify that state agencies' compliance with the final rule's requirements will be monitored by CB through the CFSRs, a formal monitoring protocol in which the state's efforts to comply with title IV-E and IV-B program requirements are assessed at the case and systems level.

Comment:

Several commenters recommended that the provision be expanded to all children in foster care to ensure no child experiences retaliation. One commenter recommended modifying the final rule to include a prohibition on retaliation of the disclosure of the child's LGBTQI+ “status” in addition to the child's identity.

Response:

We agree with commenters that retaliation against any child because of their characteristics or identity is harmful and impermissible. For example, title VI of the Civil Rights Act of 1964, which prohibits all recipients of Federal financial assistance from discriminating on the basis of race, color, or national origin, specifically prohibits retaliation against anyone seeking to vindicate a right under that law. This prohibition includes discrimination and retaliation against children based on their shared ancestry or ethnic characteristics, including children who are perceived to be Jewish, Christian, Muslim, Sikh, Hindu, or Buddhist, or of another religious group, if the discrimination is based on their ancestry or ethnic characteristics. The purpose of this rule is to clarify the specific protections necessary for LGBTQI+ youth to receive safe and proper care in an appropriate placement. In particular, safe and proper care for LGBTQI+ youth requires that no child in foster care experiences retaliation as a result of their LGBTQI+ status or identity or for being perceived to have an LGBTQI+ status or identity. This intent is reflected in the current text of the final rule.

Comment:

One commenter recommended modifying the final rule to include that a child should not experience retaliation if an LGBTQI+ child's identity is disclosed by a “third party.”

Response:

We agree with the commenter and modified the final rule to ensure a child does not experience retaliation as a result of disclosure of an LGBTQI+ child's identity or status by a third party. As such, the provision now includes a prohibition on retaliation whether the child or a third party discloses the LGBTQI+ child's status or identity. This is to ensure that the provision is applied as broadly as needed and provides protection for a child whose identity or status is shared with another party resulting in the possibility of retaliation as discussed in the preamble of the proposed rule.

Comment:

Several commenters recommended that retaliation include restricting normalcy activities (

e.g.,

attempts to restrict access to activities that allow youth to make and maintain friends, and develop problem solving skills) due to their sexual orientation or gender identity. One commenter recommended modifying the final rule to reflect that retaliation is not limited to items listed and can include restriction of access to supportive community resources.

Response:

ACF agrees that restricting an LGBTQI+ child's access to age- and developmentally appropriate supportive resources or activities, or access to supportive peers or family members, based on their LGBTQI+ status or identity, would constitute retaliation under this rule. We also agree that disclosing the child's LGBTQI+ status and/or identity in ways that cause harm or risk the privacy of the child are impermissible forms of retaliation. The final rule clarifies the conduct that will be considered retaliation includes the examples listed at § 1355.22(d)(2)(i) through (vi).

Comment:

One commenter voiced concern about a “lack of an enforcement policy related to retaliation” and stated without significant enforcement policy, the provision is hollow.

Response:

We considered the commenters concern and, to provide further clarity, modified the regulatory provisions for monitoring in the final rule. The final rule now includes monitoring a state agency's compliance with the requirements of § 1355.22(d) through the CFSR.

Final Rule Changes:

Consistent with the Protections Generally Applicable for all placements, discussed above, the final rule clarifies that harassment, mistreatment, or abuse would also be considered retaliation. In response to comments on other possible retaliatory actions against LGBTQI+ children or their caregivers, the final rule also specifies that a title IV-E/IV-B agency, provider, or any entity acting on behalf of an agency or provider will be considered to have retaliated against a child if it restricts access to developmentally appropriate materials or community resources; discloses private information in a way that causes harm or violates the rights of a child; or uses information about the child's LGBTQI+ status or identity to initiate or sustain an investigatory action. The final rule extends the prohibition on retaliation to include retaliation against current or potential caregivers. It clarifies a requirement that children receiving notice of the availability of Designated Placements also be provided notice of the retaliation protections, and it provides for monitoring state agency compliance through the CFSR.

Section 1355.22(e) Access to Supportive and Age- or Developmentally Appropriate Services

Section 1355.22(a)(5) of the proposed rule described the requirements for the agency to provide access to services that support the child's LGBTQI+ status and/or identity and includes clinically appropriate mental and behavioral health care that is supportive of their

sexual orientation and gender identity and expression.

Comment:

Many organizations suggested adding medical care (some referred to this as health care) and clarifying what this entails. Several commenters said it was unclear whether the rule allows or requires gender-affirming medical care, with some commenters opposing access to gender-affirming care and others supporting such access. Many organizations suggested the rule should state that gender-affirming medical care is among the potential age-appropriate resources and services that may support transgender children's health and well-being. Other commenters said that gender-affirming care should never be considered “appropriate” services.

Response:

This rule does not establish any standard of medical care. Title IV-E agencies determine what services to provide to an individual child, on a case-by-case basis, in accordance with statutory requirements. Specifically, the case plan must assure “that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents' home, facilitate return of the child to his own safe home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan”. See section 475(1)(B) of the Social Security Act, 42 U.S.C. 675(1)(B). What services are appropriate for an individual child would depend on many individual factors, including physicians' recommendations, the input and consent of the child's authorized legal representative or parent, the child's input, and the best available medical guidance at the time. Nothing in this rule preempts state laws regulating the practice of medicine or prohibiting particular treatments.

Comment:

Many commenters recommended explicitly defining mental and behavioral health care as broad and inclusive of wellness practices and alternative supports.

Response:

Mental and behavioral health supports are examples of required supports for which the agency must provide access to all children in foster care, including LGBTQI+ children. As such, ACF has determined it is not necessary to provide a definition for these examples. Title IV-E/IV-B agencies will determine what mental and behavioral health care services are needed on a case-by-case basis in accordance with a child's case plan to, among other things, facilitate the child's safe return home or the permanent placement of the child.

Comment:

Several commenters suggested explicitly prohibiting the use of so-called “conversion therapy” and other harmful interventions that undermine and conflict with a youth's identity. Other commenters asked about the definition and ability to use “talk therapy.” Others provided information that addressed out of scope issues regarding this topic.

Response:

As we stated in the NPRM, efforts to change or suppress a child's sexual orientation, gender identity, or gender expression—also known as so-called “conversion therapy”—are not supported by credible evidence and have been rejected as harmful by the American Academy of Child and Adolescent Psychiatry, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychological Association, and the National Association of Social Workers, among others. The final rule, at § 1355.22(d)(2)(ii), includes “Attempts to undermine, suppress, change, or stigmatize a child's sexual orientation or gender identity or expression through so-called “conversion therapy” as a form of prohibited retaliation against any child known or perceived to have an LGBTQI+ status or identity.

Section 1355.22(e) requires that the title IV-E/IV-B agency must ensure that LGBTQI+ children have access to age- or developmentally appropriate services that are supportive of their sexual orientation and gender identity or expression, including clinically appropriate mental and behavioral health supports, which can include forms of talk therapy.

Comment:

Several commenters had suggestions or requested clarification regarding the terms used in this provision. Several organizations suggested using the term “developmentally appropriate” instead of “age-appropriate.”

Response:

We agree with commenters that in addition to age-appropriate services, a child should have access to developmentally appropriate services. Therefore, we are revising the final rule to read “age- or developmentally appropriate”. This is to be consistent with the definition in section 475(11)(A) of the Social Security Act, 42 U.S.C. 675(11)(A).

Comment:

A few commenters recommended ACF provide technical assistance, consultants, or funding to support recruitment of providers in rural areas to support LGBTQI+ children in foster care. Several organizations expressed their views on working with local and national agencies and individuals with lived experience to maintain a list of national resources to assist agencies in identifying supportive and age-appropriate services and to add standards of care for what constitutes clinically appropriate care and services.

Response:

ACF has a current solicitation for a training and technical assistance contractor to assist states and tribes by providing training to increase Designated Placements for LGBTQI+ children and youth in foster care. ACF intends to issue implementation guidance for the final rule incorporating many of these recommendations for recruiting Designated Placement providers including in rural areas, including partnering with local and national agencies serving LGBTQI+ youth, and approaches which are informed by the lived experiences of LGBTQI+ children and youth in foster care.

Final Rule Changes:

The final rule states that attempts to undermine, suppress, change, or stigmatize a child's sexual orientation or gender identity or expression through so-called “conversion therapy” is a form of prohibited retaliation against any child known or perceived to have an LGBTQI+ status and/or identity. The final rule also adds that, in addition to age-appropriate services, a child should have access to developmentally appropriate services.

Section 1355.22(f) Placement of Transgender and Gender Non-Conforming Children in Foster Care

In the NPRM, ACF proposed that when considering placing a transgender, gender non-conforming or intersex child in sex segregated child care institutions, the title IV-E/IV-B agency must place the child consistent with their gender identity. The NPRM further proposed to require that IV-E/IV-B agency also consult with the transgender, gender non-conforming, or intersex child to provide an opportunity to voice any concerns related to the placement when the agency is considering a placement in such a facility.

Comment:

A commenter asked that the final rule clarify placement procedures for non-binary and Two-Spirit children living in sex-segregated child care institutions.

Response:

As explained in the preamble to the final rule for § 1355.22, non-binary and Two-Spirit children are included throughout this regulation under the term LGBTQI+. Thus, this provision for the agency to place the child consistent with their gender identity also applies to non-binary and Two-Spirit children and we have added the language to reflect this in the

preamble for clarity. When making placement decisions for children whose gender identity doesn't meet the sex-segregated options at the child care institution, the title IV-E/IV-B agency should engage with the child to determine the safest living arrangement that is in the child's best interest among the options that are available, giving substantial weight to the child's request.

Comment:

Some commenters expressed concern about the NPRM requirement for children to be placed in sex segregated child care institutions consistent with their self-identified gender identity, not their “biological sex.” They stated it is a danger and “disregards the child's safety and privacy interests to be placed in a mixed-sex setting” that a child “may find uncomfortable and invasive or, at worst, unsafe.” One state recommended that the final rule allow for discussions that incorporate the child's preference as well as safety and risk concerns.

Response:

ACF agrees that it is important to incorporate a child's preference for all placements. While ACF believes the requirement to offer a transgender or gender non-conforming child a placement consistent with their gender identity is most applicable to placements in child care institutions and sex segregated facilities, we have determined that it is necessary to extend that requirement to apply to all placements for transgender and gender non-conforming children. ACF accordingly updated the final rule text to apply to all placements for transgender and gender non-conforming children. The final rule text states that, when considering placing a child, the title IV-E/IV-B agency must offer the child a placement consistent with their gender identity. The updated regulatory text is consistent with the statutory requirement to place children in the “most appropriate setting available” (section 475(5) of the Social Security Act, 42 U.S.C. 675(5)(A)) and the rule's requirement that title IV-E/IV-B agencies must give substantial weight to the child's expressed concerns or requests when determining the LGBTQI+ child's best interest when making placement and service decisions.

ACF disagrees with the assertion that allowing transgender and other youth to access sex-segregated facilities consistent with their gender identity will diminish safety or privacy. Courts have held that all individuals' safety and privacy can be protected without also excluding transgender individuals from accessing sex-separate facilities and activities consistent with their gender identity.

Title IV-E/IV-B agencies have a range of tools at their disposal to accommodate any individuals' privacy concerns in a nondiscriminatory manner. However, a title IV/IV-B agency will be in violation of this rule if it refuses to offer a child a placement consistent with their gender identity. We also note that no application of this rule shall be required insofar as it would violate Federal religious freedom, conscience, or free speech law and that providers may request an accommodation from any rule provision as described in Section IV of the preamble, below.

See, e.g., Grimm

Gloucester City

, 972. F.3d 586 (2020).

In addition, the NPRM proposed to require consultation with the child and the final rule maintains this requirement. The final rule requires that the title IV-E/IV-B agency consult with the child to provide an opportunity for the child to voice any concerns related to their placement when the agency is considering placing the child in such a facility.

Comment:

One commenter was concerned that the NPRM did not account for the preferences of parents whose rights are intact in these agency placement decisions.

Response:

Title IV-B/IV-E agencies have an established responsibility to engage with parents. For example, under 45 CFR 1356.21, title IV-E agencies “must make reasonable efforts to maintain the family unit and prevent unnecessary removal of a child from [their] home, as long as and the child's safety is assured; [and] to effect the safe reunification of the child and family if temporary out-of-home placement is necessary to ensure the immediate safety of the child.” Under state and tribal law, parents often also retain certain rights even after their children have been removed from their physical and/or legal custody. We expect that agencies will act with appropriate awareness of parental rights under the law of the applicable state or tribe.

Comment:

A few commenters expressed concerns that the provision may conflict with state laws and policies that govern sex-segregated childcare institutions and that many sex-segregated childcare institutions are not equipped to meet these placement requirements.

Response:

The requirement to offer children a placement consistent with their gender identity is based on ACF's careful consideration of current research on best practices to promote children's health and wellbeing, as described in Section II of the preamble. This regulatory requirement does not preempt state or tribal laws regarding sex-segregated institutions. It simply requires that a child be offered a placement that is consistent with their gender identity. It thus clarifies, for children in foster care, the IV-E statutory requirement to place foster children in “a safe setting . . . consistent with the best interest and special needs of the child.” Section 475(5) of the Social Security Act, 42 U.S.C. 675(5)(A). If a state law prohibits placement in sex-segregated institutions based on gender identity, then the title IV-E/IV-B agency should explore all other placement options in order to offer a foster child a placement consistent with their gender identity, while also meeting the child's other particular needs. ACF further notes that pursuant to § 1355.22(d)(2)(iii), agencies may not place children in child care institutions solely due to their sexual orientation or gender identity or expression or allow child care institutions or other providers to segregate or isolate children on the basis of their sexual orientation or gender identity or expression.

Comment:

Some commenters suggested having single or private rooms for youth who are non-binary and Two-Spirit who are placed in sex-segregated childcare institutions to ensure their comfort.

Response:

ACF appreciates the commenter's concern for the privacy of such children and notes nothing in this rule would preclude those entities from accommodating the privacy needs of any child in their care. Appropriate placements should be determined based on the child's individual needs and their expressed preferences. We understand the commenters' concern that such children might feel especially uncomfortable in sex-segregated childcare institutions and encourage agencies to work with such children to ensure they receive appropriate placements.

Comment:

Commenters made recommendations throughout about how Federal funding should be used and that it should be prohibited in specified circumstances, such as if a childcare institution does not allow children to be placed according to their gender identity.

Response:

The final rule does not regulate how Federal funding under title IVE is reimbursed to states and tribes. Eligibility for title IV-E reimbursement of the placement of a particular child is based on many factors, including that the child is placed in a child care institution or foster family home as defined in section 472 of the Social Security Act. The final rule implements

title IV-E and IV-B plan requirements, and not the particulars of title IV-E foster care funding. Therefore, the recommendations are not within the purview of this final rule and no changes were made to the final rule.

Final Rule Change:

The final rule clarifies that the requirement for title IV-E/IV-B agencies to offer placements for transgender and gender non-conforming children consistent with a child's gender identity applies to all placements, not exclusively to sex-segregated child care institutions.

Section 1355.22(g) Compliance With Privacy Laws

As explained in the NPRM, title IV-E/IV-B agencies are prohibited from disclosing information concerning foster children for any purpose except for those specifically authorized by statute section 471(a)(8) of the Social Security Act. Information about a foster child's LGBTQI+ identity or status, as well as any other information in their foster care case file, is protected by these confidentiality requirements. Foster children's personal information may only be disclosed for specific authorized purposes, which are, in paraphrase: the administration of the title IV-E plan and that of other Federal assistance programs; any investigation, prosecution, or audit conducted in connection with any of those programs; and reporting child abuse and neglect to appropriate authorities. Under ACF regulations and policy, information that the IV-E/IV-B agency discloses for those allowable purposes may not be redisclosed by recipients unless the redisclosure is also for one of the enumerated allowable purposes. 45 CFR 205.50; Child Welfare Policy Manual 8.4E.

Comments:

Commenters provided input on the impact of the regulations on the privacy and confidentiality of LGBTQI+ youth. In addition, in the NPRM we requested public comment on what further guidance states may need on producing administrative records to monitor and track requests for safe and appropriate placements for LGBTQI+ children, while protecting the privacy and confidentiality of all children.

Several commenters expressed concerns that children may feel unsafe disclosing their LGBTQI+ identity or reporting mistreatment in their current out-of-home placement due to their sexual orientation or gender identity. LGBTQI+ youth with lived experience in foster care have shared in comment letters, surveys, and testimony that they do not disclose their sexual orientation, gender identity or expression to foster parents and caseworkers for fear of lack of acceptance, unwarranted placement changes, fear of separation from siblings and/or unwarranted placements in congregate care facilities, feeling a “taboo” against sharing their LGBTQI+ identity, fearing prejudice, and lacking privacy. Commenters additionally stated that state laws restricting discussion of LGBTQI+ identities in school may have a chilling effect on whether children feel safe disclosing their sexual orientation or gender identity.

A few commenters made suggestions related to enhanced confidentiality provisions for data collection on a child's sexual orientation, gender identity, or sex characteristics. These included a recommendation to include a provision to require the agency to disclose information only when necessary for the wellbeing of the child or required by court, to regulate permissible uses of data, data sharing, and data security/storage protocols, to require consistency with confidentiality requirements for health data, and to require the child's consent to any disclosure under section 471(a)(8) of the Social Security Act (42 U.S.C. 671(a)(8)) about a specific child's sexual orientation, gender identity, or sex characteristics. Two commenters recommended provisions on how to store, seal and maintain a child's record. Specifically, they stated that the final rule should require agencies to seal physical records related to a child's sexual orientation, gender identity or expression and separately maintain the information from the case record and that electronic records should be maintained under separate, heightened data security levels.

Response:

These experiences and concerns illustrate the need for data confidentiality, and protections from retaliation for disclosure or presumption of a child's LGBTQI+ identity and status. Such requirements are essential to help ensure that children will feel safe to disclose their identity and request Designated Placements.

Some states have existing privacy and data confidentiality requirements related to foster children's sexual orientation, or gender identity or expression. For example, California law provides that all children in foster care have the right “to maintain privacy regarding sexual orientation and gender identity and expression, unless the child permits the information to be disclosed, or disclosure is required to protect their health and safety, or disclosure is compelled by law or a court order.” Cal. Welf. & Inst. Code sec. 16001.9(a)(19). In response to comments, and to address risks related to the disclosure of a child's LGBTQI+ status or identity and to help ensure children feel safe in making such disclosures and requesting Designated Placements, the final rule includes a number of important protections. First, § 1355.22(b)(2) provides that the process for requesting a Designated Placement or services to make a current placement a supportive one must safeguard the privacy and confidentiality of the child, consistent with section 471(a)(8) of the Social Security Act (42 U.S.C. 671(a)(8)) and 45 CFR 205.50. Second, § 1355.22(c) provides that the process for reporting concerns about a current placement must safeguard the privacy and confidentiality of the child, consistent with section 471(a)(8) of the Act (42 U.S.C. 671(a)(8)) and 45 CFR 205.50. Third, § 1355.22(d)(2)(v) provides that prohibited retaliation includes disclosing the child's LGBTQI+ status or identity in ways that cause harm or risk the privacy of the child or that infringe on any privacy rights of the child. Fourth, § 1355.22(g) specifies that the title IV-E/IV-B agency must comply with all applicable privacy laws, including section 471(a)(8) of the Act (42 U.S.C. 671(a)(8)) and 45 CFR 205.50, in all aspects of its implementation of this section, and that information that reveals a child's LGBTQI+ status or identity may only be disclosed in accordance with law and any such disclosure must be the minimum necessary to accomplish the legally-permitted purposes. The amount of information necessary to achieve the purpose of the disclosure would be determined on a case-by-case basis and in consideration of the best interest of the child. For example, the information needed to make a referral for a child to receive services related to the child's identity or status could be greater than another type of referral for services. In addition, states that allow open courts would want to be mindful about the information shared in reports to the court as that information could be later shared openly.

The incorporation of these provisions is consistent with existing legal requirements relating to privacy and confidentiality. As discussed earlier in the preamble, title IV-E/IV-B agencies are required to maintain a child's information confidentially and may disclose it only for purposes specifically authorized by law. Under ACF regulations and policy, information that the IV-E/IV-B agency discloses for those allowable purposes may not be redisclosed by recipients unless the redisclosure is also for one of the enumerated allowable purposes. 45 CFR 205.50; Child Welfare Policy Manual

8.4E. Regarding the statutory provision that allows title IV-E/IV-B agencies to disclose a child's information for investigations, prosecutions, criminal or civil proceedings, or audits “conducted in connection with the administration of any [Federal assistance] programs,” the requirement that the proceeding or audit be “conducted in connection with the administration” of title IV-E or another Federal assistance program strictly limits the disclosures allowed. Title IV-E/IV-B agencies may not disclose information for purposes such as investigating whether children or families are in compliance with generally-applicable state or local laws, as such investigations would not be conducted in connection with the administration of a Federal assistance program.

Final Rule Changes:

The final rule includes several revision

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