Trump Administration Limits New Foster Care Data on LGBTQ, Education, and Native American Families

Lynn Johnson, head of the Administration for Children and Families. Photo courtesy of Senate Finance Committee

The Trump administration has rewritten new child welfare data collection rules to eliminate information about sexual orientation and educational stability, as well as limit the amount of information collected about cases involving Native American children and parents.

The Administration for Children and Families (ACF), the division of the Department of Health and Human Services that oversees child welfare, cut down an Obama-era plan for 272 new data points on children and families to 183. The announcement cites comments from states that the total package finalized in 2016 would be a major cost burden.

“States estimated that total costs to comply with the 2016 final rule ranged from $1 million for one year to $45 million over multiple years,” said today’s announcement, which was published in the Federal Register. “They provided ranges for specific costs, such as $41 million to hire and train new staff for administrative support, $600,000 to $1 million for total initial costs, and $741,000 to $11 million for ongoing costs.”

Those costs were particularly burdensome in light of the looming onset of the Family First Prevention Services Act, ACF said. The law mostly takes effect in October, and includes new funds for preventing the use of foster care in some cases, but also has provisions that limit federal funding for group homes and other congregate care placements.

State child welfare agencies may delay the congregate care limits until 2021, but would forfeit access to the foster care prevention funds during that time.

“Imposing additional reporting costs at this time … may severely impede states’ ability to opt into the…prevention services program,” ACF said.

Federal data on child welfare cases is collected through the Adoption and Foster Care Analysis and Reporting System (AFCARS), and each state is required to provide information to it. It has been decades since the data required under AFCARS was updated, and several major reforms to federal child welfare policy have occurred during that time.

The Indian Child Welfare Act (ICWA), which turned 40 last year and mandates special protections to prevent the removal of Native American kids from their families and tribes, was never incorporated into AFCARS. This has contributed to a paucity of knowledge about the impact of the law, which is currently being challenged in federal court.

ACF plans to keep a short list of ICWA-related elements, including:

  • The tribal membership of the child, parents, foster or adoptive parents.
  • Whether ICWA’s applicability to a case was sought, and whether state agencies complied with requirements to notify relevant tribes.

Many states voiced concerns about the inclusion of data elements that would require caseworkers to ask foster youths and their parents about sexual orientation. ACF has decided to remove all of those questions from the new AFCARS rules, with the exception of one. States will still have to report the number of cases in which foster care removal was prompted in whole or in part because of the sexual orientation of the child, meaning a family dispute related to that.

“It is clear that AFCARS is not the appropriate vehicle to collect this information,” ACF noted. “It is not feasible for us to test the validity or accuracy of adding questions related to sexual orientation across all [child welfare] agencies. Additionally, it is impossible to ensure that a child’s response to a question on sexual orientation would be kept private, anonymous or confidential considering a caseworker would be gathering this information to enter into a child’s case electronic record.”

The administration also nixed data collection related to educational stability, specifically regarding decisions to move a child to a different school after removal into foster care. Two different laws – the Fostering Connections to Success and Increasing Adoptions Act, and the Every Student Succeeds Act – have included provisions aimed at keeping kids in their school of origin if that is what they want.

States had pushed back on this requirement when Obama’s ACF proposed it. Here is the 2016 response included in the final rules:

Collecting information on the reasons [child welfare] agencies determine that remaining in the school of origin or a previous school is not in the child’s best interest will help to identify and address barriers to educational stability after an initial placement into foster care or a change in living arrangements.

The same arguments by states seem to have been persuasive to current leadership.

ACF is also removing requirements to report on the juvenile justice involvement of foster youth – an element that was aimed at providing more insight about youth who cross over from one system to the other – and data about placements with private agencies, transition planning for aging-out youth, and adoptions that require use of an interstate compact.

In deciding what requirements to keep, and what elements to eliminate or streamline, ACF appears to have been guided by what elements are called for under signed legislation. One element that was kept, despite some concerns about collection voiced by states, is information about previous adoptions or guardianships experienced by children entering foster care. This was included in 2014 legislation authored by former Sen. Orrin Hatch (R-Utah), and is expected to provide a glimpse into a fairly dark corner of child welfare: the frequency of disrupted or failed adoptions.

In other cases, the agency suggested that some data is more appropriately examined through qualitative reviews and case studies. ACF also made a point of contesting the notion that more data collection under AFCARS was necessary to propel policy changes.

“Congress has passed approximately 24 laws that significantly amended federal child welfare programs since 1995, when AFCARS became effective,” ACF argued. “These policy changes were made despite not having the additional data from the 2016 final rule.”

ACF announced in March of 2018 that it would reconsider the Obama-era rules, which happened to be around the same time ACF boss Lynn Johnson came before the Senate Finance Committee for a confirmation hearing.

The news prompted the ranking member of the Senate Finance Committee, Sen. Ron Wyden (D-Ore.), to withhold his support for President Trump’s top child welfare official unless HHS reconsiders.

“I need to be clear that your nomination isn’t going forward with my support unless there is a commitment to get this done, with a timeline,” Wyden said, at the hearing to consider ACF nominee Lynn Johnson.

There will be a public comment period following the proposed rules promulgated today. If and when the rule is finalized, states will have a full year to prepare before having to include the new data requirements.


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John Kelly
About John Kelly 1051 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change.