The Biden Administration has published a number of new regulations in the past few weeks, moving at a very quick pace. The Congressional Review Act allows Congress to disapprove of a final rule, but the resolution must be introduced within a specific time frame: during a 60-days-of-continuous-session period beginning on the day Congress receives the rule. By publishing these rules now, the Administration is ensuring that any disapproval would have to occur before the end of this Congress, which President Biden would have the power to veto.

Below are summaries of the final rules for which CWLA submitted comments on their Notices of Proposed Rulemaking (NPRMs), either individually or in partnership. CWLA’s comments can be found on our Advocacy Center website.

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

On April 29, 2024, the Department of Health and Human Services announced a final rule regarding foster care placements for LGBTQI+ youth in care. Previously referred to as “safe and appropriate placements” in the NPRM, the Administration for Children and Families (ACF) made significant changes to the final rule in response to the comments that were submitted by child welfare providers, advocacy organizations, and private individuals. Using the new terminology “designated placement,” recognizes that all children and youth are already entitled to “safe and appropriate placements” under current Federal law, but that given the disproportionality and negative experiences of LGBTQI+ children in foster care, there is a need for additional training and awareness for providers to ensure the health and safety of this population.

This rule requires state and tribal child welfare agencies to ensure that the totality of their child welfare system includes sufficient placements for LGBTQI+ children that meet each of the standards for designated placements. To be considered a designated placement for LGBTQI+ children, the placement must satisfy three conditions:

  • The provider must commit to establishing an environment that supports the child’s LGBTQI+ status or identity; and
  • 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; and
  • The provider must facilitate the child’s access to age- or developmentally appropriate resources, services, and activities that support their health and well-being.

Changes in the final rule stress the importance of placement stability and supporting kinship care and keeping sibling groups together by stating that in addition to requesting a designated placement, a child or youth can request that services and training be offered to current caregivers, including kin, to help them become a designated placement if they wish to do so. Another change explicitly bans “conversion therapy,” a recommendation made by CWLA and others: The final rule 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.

Provisions from the NPRM that were maintained including requiring that all youth receive notification of the availability of designated placements beginning at age 14 and that children who request designated placements are protected from retaliation or harassment. The final rule does not require any provider to become a designated placement and does not allow 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.

Throughout the rule, ACF notes that guidance and information about implementation and best practices for specific parts of the rule are forthcoming, many of which CWLA specifically requested in our comments.

The comment period for the NPRM closed on November 27, 2023. ACF 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, some in support and some in opposition;
  • Two letters representing 26 congressional members in opposition to the rule;
  • Comments from 65 advocacy organizations, providers, and university institutes, some in support and some in opposition; and
  • 13,536 comments from individuals, more than 12,000 of which consisted of two form letters, one in support and one in opposition. ACF received over 1,700 form letters that expressed support, and over 10,000 form letters that 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.

Discrimination on the Basis of Disability in Health and Human Service Programs or Activities.

On May 9th, HHS announced the publication of the final rule on nondiscrimination under Section 504. The proposed rule contained provisions relating to foster care and the most integrated setting/placement of children with disabilities as well as the ability of foster parents, caregivers and others with disabilities to care for children in the child welfare system.

According to the final rule, many commenters enthusiastically supported the revisions to the child welfare section, echoing the Department’s explanation in the NPRM that children, parents, caregivers, foster parents, and prospective parents with disabilities encounter a wide range of discriminatory barriers when accessing critical child welfare programs and services.

Most of the child welfare provisions in the final rule are identical to what was proposed in the NPRM. The final rule states that the most integrated setting appropriate for children with disabilities is almost always the family home or a family foster care setting. Recipients should consider and facilitate the full range of services and supports a family may be eligible for to keep parents and children together. The rule states, “the Department’s position is that children should not be required to enter or remain in the child welfare system solely to receive disability-related services and supports,” and encourages transition planning for long-term service continuity. The final rule also notes that, “the practice of requiring parents to relinquish custody of a child with a disability, so that the child may receive disability-related services,” such as intensive behavioral health supports in a residential treatment facility, is discrimination under section 504 and includes a prohibition against this practice.

The final rule also adds “family preservation services” to the list of services that may not be denied, terminated, or abridged unfairly. Finally, it clarifies, “that evaluations and risk assessments must be tailored to assess parenting capabilities and support needs, rather than the disability itself,” and that the agency must “ensure that tests, assessments, and other evaluation tools and materials used for the purpose of assessing or evaluating parenting ability are based in evidence or research, are conducted by a qualified professional and are tailored to assess actual parenting ability and specific areas of disability-related needs,” and must be fully accessible to the individual with a disability.

Foster Care Legal Representation.

On May 10th, ACF published the final rule on foster care legal representation, to allow title IV-E agencies to claim federal financial participation (FFP) for the administrative costs of:

(1) legal representation in foster care proceedings of a title IV-E agency or any other public agency, including a tribe, that has an agreement in effect under which the other agency has placement and care responsibility of a title IV-E eligible child;

(2) independent legal representation of a child who is either a candidate for title IV-E foster care, or in title IV-E foster care, the child’s parent(s), the child’s relative caregiver(s), and the child’s Indian custodian(s) in foster care and other civil legal proceedings when such legal representation is found necessary by the Secretary to carry out the requirements in the title IV-E agency’s title IV-E foster care plan; and

(3) legal representation by an attorney, or representation by a non-attorney, of an Indian child’s tribe when the child’s tribe participates or intervenes in any state court proceeding for the foster care placement or termination of parental rights of a title IV-E eligible Indian child when such legal representation is found necessary by the Secretary to carry out the requirements in the title IV-E agency’s title IV-E foster care plan.

ACF received 122 comments on the NPRM. The final rule did not drastically change from the proposed rule released in September 2023, though it does make two changes related to Tribal child welfare concerns: 1.) Title IV–E agencies may claim FFP for the administrative costs of independent legal representation for Indian custodian(s) in foster care and other civil legal proceedings, and 2.) Title IV–E agencies may claim the administrative cost of an attorney or non-attorney representing an Indian child’s tribe when the child’s tribe participates or intervenes in any state court proceeding for the foster care placement or (TPR) of an Indian child who is in title IV–E foster care or an Indian child who is a candidate for title IV–E foster care.

Throughout the final rule, ACF affirms that a title IV-E agency may choose whether to claim FFP for legal representation as described in the final rule, including in instances of conflict between the interests of a child’s parent(s) and other caregivers, such as kinship caregivers.

Health and Human Services Grants Regulation.

On May 3rd, HHS published its final rule on nondiscrimination against LGBTQI+ individuals in HHS programs. The proposed rule, Health and Human Services Grants Regulation (HHS Grants Rule), sought to protect LGBTQI+ people from discrimination in important health and human services programs by clarifying and reaffirming the prohibition on discrimination on the basis of sexual orientation and gender identity in certain statutes. The proposed rule did not include child welfare programs, and CWLA signed comments with 64 other national and local organizations requesting that the rule include Title IV-E and IV-B programs. The Department declined to include child welfare programs in the final rule, stating that Title IV-E Foster Care programs are not covered under the specific sections addressed by the rule.

Healthcare Eligibility for DACA Recipients.

On May 3rd, the Biden Administration announced a final rule that would expand health care access through the Affordable Care Act to Deferred Action for Childhood Arrivals (DACA) recipients. CWLA did not submit comments on this proposed rule.

The Center on Budget and Policy Priorities estimates that approximately 100,000 people could gain access to affordable health coverage due to the rule, which modifies the immigration-related eligibility requirements for enrollment in the Affordable Care Act marketplaces and Basic Health Programs, starting in November of this year. “People will have more protections against medical debt, better access to health services, and a higher likelihood of experiencing better health outcomes, giving them more opportunities to thrive.”