Following up on a Friday, November 1, press announcement, on Tuesday, November 19, HHS published both their notice of non-enforcement of anti-discrimination provisions implemented during the Obama Administration and a notice of proposed rulemaking regarding the Obama nondiscrimination regulation regarding federal funding under HHS programs including child welfare funding under Title IV-E and Title IV-E.

The Trump administration won’t enforce the Obama era nondiscrimination rules that apply to religion, sexual orientation, or gender identity. As announced earlier, they will only enforce nondiscrimination laws and Supreme Court rulings.

The rulemaking process proposes to repromulgate some (but not all) of the regulatory provisions included in the Final Rule and to issue new and amended provisions. HHS is seeking comments on the proposed rule, including its likely impacts as compared to the previous Final Rule. The Department is interested in comments relating to the comparative effects and impact of its own enforcement discretion, specifically were the previous Final rule to be fully enforced, as well as whether HHS were to exercise its enforcement discretion regarding the Final Rule fully.

HHS argues that the nondiscrimination regulation violated the Regulatory Flexibility Act (RFA) because the Obama Administration did not describe the rule’s impact on small entities (i.e., propriety firms meeting the definition of the Small Business Administration, nonprofit organizations or a small government jurisdiction).

The deadline for comments is December 19. CWLA will be submitting comments in support of nondiscrimination in the placement of children and the recruitment of foster and adoptive parents.