AFCARS

AFCARS Final Rule Has Been Released

Kate Fort

Here.

This rule finalizes revisions to the Adoption and Foster Care Analysis and Reporting System (AFCARS) regulations proposed on February 23, 2024. This final rule requires state title IV-E agencies to collect and report to ACF additional data related to the Indian Child Welfare Act of 1978 (ICWA) for children in the AFCARS Out-of-Home Care Reporting Population.

As you may recall, there was a rule promulgated in 2016 which was almost immediately withdrawn and replaced with a 2020 rule. It has taken another four years for the Biden administration to issue this rule. Regardless, if this rule holds, in three years all states will be required to collect ICWA data in state court cases.

AFCARS Model Comment Available

Kate Fort

As a reminder, comments for the ICWA AFCARS are due April 23. The Indian Law Clinic has developed a model comment for tribes to edit and use if they so wish. For a copy of the comment, please contact Cody Fowler, who has done the heavy lifting on this work, is an MSU grad and is helping out the Clinic for a few weeks! He can be contacted at:

fowler48@msu.edu

The proposed rule is here, as well as the link to submit comments:

https://www.federalregister.gov/documents/2024/02/23/2024-03373/adoption-and-foster-care-analysis-and-reporting-system

As a reminder, this is a proposed rule to require nationwide data collection about ICWA children in foster care. We have never had nationwide data on ICWA cases, despite nearly ten years of active litigation to try to get the 2016 rule back, and many years of activism before that to get the 2016 rule.

Reminder: AFCARS Comments on ICWA Due April 23

Kate Fort

I posted about this here, and comments are due April 23. The Indian Law Clinic should have a model comment available for tribes to use and edit by the end of next week.

This rule proposes to require states that receive federal funding for their foster care systems to gather accurate data on children in state courts who are subject to ICWA’s protections. This is done through the Adoption and Foster Care Analysis and Reporting System (AFCARS) If you are a state worker, please encourage your state agency to comment in favor of this rule.

The proposed rule is here and is nearly identical to the one promulgated in 2016 (and then withdrawn by the Trump administration).

HHS Releases Proposed Rule to Collect ICWA Data through AFCARS, Comments Needed

Kate Fort

If you are reading that title and thinking, “Kate, I am pretty sure you have posted this before. Like, a lot.” you are not wrong:
https://turtletalk.blog/?s=AFCARS

In fact, titles from prior posts include “Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rule Making. Again.” and “Déjà vu All Over Again: AFCARS Comments Needed“

The short version of this 10 year saga is that at the end of the Obama administration, HHS promulgated a rule that would require Title IV-E agencies to collect information on ICWA. Before that could go into effect, the Trump administration withdrew it, and issued a different rule. After that happened, tribes and groups representing LGBTQ+ interests sued the feds to get the original rule back. Disclaimer, the MSU Indian Law Clinic represents the plaintiffs in that litigation along with Lambda Legal and Democracy Forward. Finally, the Biden administration has proposed a new rule that would go back to collecting ICWA data (this rule does not include sexual orientation or gender identity data elements). This means, yes, if you have worked in this area for the past 10 years, you may have submitted upwards of 5 sets of comments on this issue (I just checked, and we put our first one in 9 years ago, which was written by a 2L who is now a tribal leader).

The proposed regulation is here, as is the link to submit comments:

https://www.federalregister.gov/documents/2024/02/23/2024-03373/adoption-and-foster-care-analysis-and-reporting-system

What does this mean? Well, dust off your prior comments regarding the history of ICWA, the importance of ICWA, the importance of data related to ICWA, the importance of ICWA data to the children, families, and tribes involved in the system, and review the latest proposal. The actual data reporting requirements begins on 13665. Then submit an updated version of your comments in support of collecting ICWA data before April 23, 2024.

At a very first glance, this proposed rule appears to include a lot of important data questions that would inform practice and help with compliance, and limit the data collection to “state” Title IV-E agencies. The proposed rule appears marginally more limited than the original 2016 rule, but more expansive than the 2020 rule, though I will need to compare them more closely.

Dear Tribal Leader Letter re. ICWA Support

Kate Fort

Letter Here

The Administration (DOI, HHS, and DOJ) are asking for input on the following:

What additional supports would Tribal leaders find helpful to build their Tribe’s capacity to exercise their rights and responsibilities under ICWA? 

Are there specific supports you believe the federal government could provide to help state courts and child welfare agencies meet their obligations under ICW A?

In your experience, are there specific aspects or requirements of ICWA where state courts and agencies need to build greater understanding or capacity? 

Are there existing State-Tribe collaborative partnerships or processes that you believe have helped support effective implementation ofICWA? 


Consultation is August 7 online and August 11 in Anchorage. Commends are due by September 15, 2023.

I might note the lawsuit regarding data and ICWA is ongoing in the Ninth Circuit, though the Administration has promised to issue a notice of rule making in October. A description of the issue of funding tribal systems (with citations) can be found here.

Motion for Summary Judgment and Amicus Briefs in AFCARS Lawsuit [foster care and adoption data for AI/AN and LGBTQ+ kids]

Kate Fort

Final_Motion for Summary Judgment  

Plaintiffs have standing to bring this case. Plaintiffs here include the largest federally recognized tribes in California and in the United States, a coalition of dozens of tribes located in California, a foster youth and foster care alumni organization in Alaska, and three organizations from around the country that work with LGBTQ+ foster youth and/or youth who have experienced sex or labor trafficking. Each of these Plaintiffs works to improve the living conditions of youth in child welfare systems and to reduce the chance they will end up homeless, incarcerated, or otherwise severely harmed while in care. The data that Defendants have abandoned are irreplaceable for the efficacy of these efforts. The 2020 Final Rule substantially impedes Plaintiffs’ ability to pursue their missions. It makes it harder for tribes to vindicate their and their children’s rights and to protect their children’s well-being. Likewise, the rule makes it more difficult for groups serving youth in care, including LGBTQ+ youth, to address the overrepresentation of those youth in the foster care population and to prevent their disproportionately negative experiences. The 2020 Final Rule thus injures Plaintiffs—along with the vulnerable children they serve. 

ProposedOrder

Exhibits:

App.A

App.B

App.C

App.D

App.E

App.F

American Academy of Pediatrics_Amicus_Brief

AAP_Amicus_Motion

Members Of Congress_Amicus_Brief

MOC_Amicus_Motion

The MSU Indian Law Clinic represents the plaintiffs in this case along with our excellent partners, Democracy Forward and Lambda Legal.

Newsy Video on ICWA and AFCARS

Kate Fort

Here

AFCARS Comments Due June 18

Kate Fort

Here are the previous posts on the Adoption and Foster Care Analysis and Reporting System.

These comments are to tell the federal government (AGAIN) to start collecting basic data on state ICWA cases. While we would like the original rule to stand (and say so in the model tribal comments), there is also an opportunity to request very specific data elements that are less complicated or confusing than the ones currently offered.

If you would like information on this issue or model tribal comments, please email Jack Trope (information handouts), Delia Sharpe (model comments), or me (both/either). If you are a law professor interested in signing on to excellent comments, email Seth Davis at Berkeley.

jtrope@casey.org

delia.sharpe@caltribalfamilies.org

fort@law.msu.edu

sdavis@law.berkeley.edu

 

AFCARS ICWA Data Elements Tribal Consultation

Kate Fort

Here is the information on the June 3 tribal consultation on the Adoption and Foster Care Analysis and Reporting System. Comments are due June 18.

Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rule Making. Again.

Kate Fort

Here.

We cannot currently track on a national level in any way how ICWA works, where children who are involved in ICWA cases are placed, what their outcomes are, or how many cases are transferred to tribal court, as examples. There is barely statewide data available, and most of it is on a county-by-county level. As just one example, Michigan is in a federal lawsuit over its data collection system.

I am deeply tired of hearing that tracking this information is simply too burdensome for the states that are putting children in care, and then getting hit in lawsuit after lawsuit with claims that are not supported by any data, but also cannot be refuted by data we refuse to collect.

If your tribe wants to submit comments, there will be model comments available before the deadline of June 18.