AFCARS

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.

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

 

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.

AFCARS Data Implementation Rule Delayed and Will be Revised. Again.

Kate Fort1 Comment

From the Administration for Children and Families here.

The rule is delayed until 2020 and the Administration is going to “streamline” the data elements. And then it might just be delayed again based on the “streamlining”:

The Children’s Bureau published in the Federal Register on August 21, 2018 a final rule to delay implementation of the December 2016 AFCARS final rule until October 1, 2020 (83 FR 42225). However, since we plan to revise the AFCARS data points, we will revisit this implementation date to provide a timeframe to allow title IV-E agencies time to comply with the revised AFCARS data points.

AFCARS Tribal Comments Needed-June 13 Deadline

Kate Fort

The Administrating is reconsidering the burdens of the Obama Administration’s Final Rule to collect data on American Indian/Alaska Native children in foster care through the Adoption and Foster Care Analysis and Reporting System (AFCARS). Comments are due June 13. Previous posts explaining this call for comments are here and here and here.

If you are interested in reviewing model comments for tribes stating the data elements should remain intact, please email Delia Sharpe (California Tribal Families Coalition)  at delia.sharpe@caltribalfamilies.org or me at fort@law.msu.edu

We will both be at the California ICWA conference today and tomorrow.

HHS in the News, and in Regulations, and in Lawsuits

Kate Fort1 Comment

Late last week, this article from Politico started making the rounds:

But the Trump administration contends the tribes are a race rather than separate governments, and exempting them from Medicaid work rules — which have been approved in three states and are being sought by at least 10 others — would be illegal preferential treatment. “HHS believes that such an exemption would raise constitutional and federal civil rights law concerns,” according to a review by administration lawyers.

The Tribal Technical Advisory Group sent a letter to Administrator Verma, linked to in the article and also posted here. The Dear Tribal Leader letter from CMS is attached as an appendix to that letter. As the article states, the letter says “Unfortunately, we are constrained by statute and are concerned that requiring states to exempt AI/ANs from work and community engagement requirements could raise civil rights issues” with no further explanation.

Centers for Medicare & Medicaid Services (CMS) is a division of the Department of Health and Human Services (HHS). So is the Administration for Children and Families (ACF), which has recently called into question the Final Rule on collecting additional data on children in foster care, including important elements on ICWA and also LGBTQ+ kiddos.

Since the election, there have been articles describing VP Pence’s interest in HHS:

On Monday, President Donald Trump nominated Alex Azar, a former Indianapolis-based drug executive and longtime Pence supporter as Health and Human Services secretary. If confirmed, Azar would join an Indiana brain trust that already includes Centers for Medicare & Medicaid Services Administrator Seema Verma and Surgeon General Jerome Adams. Two of Verma’s top deputies — Medicaid director Brian Neale and deputy chief of staff Brady Brookes — are former Pence hands as well, as is HHS’ top spokesman, Matt Lloyd.

Finally, in late March, Texas, which had added two additional states as plaintiffs in the first amended complaint–Indiana and Louisiana–amended their complaint in Texas v. Zinke to include HHS and Secretary Azar as defendants in the ICWA lawsuit, where Count IV claims ICWA’s placement preferences violate the Equal Protection Clause of the Constitution.

 

 

 

Tribal Consultation on the Proposed AFCARS Changes

ilpc1 Comment

Here is the letter sent today: Tribal Consultation Notification 4-16-2018

This is on the proposed changes to the Adoption and Foster Care Analysis and Reporting System (AFCARS), the way the feds collect from the states on adoption and foster care. This is specifically about removing ICWA data elements added in last year’s final rule because of the burden of collecting information about ICWA compliance and Native kids in care.

Both consultations will be done by phone, and if there are not enough participants “may end early”. Maybe tribal leaders or their designees would like to consult about how to weigh that “burden” of gathering information so tribes and states know what is happening with Native kids in foster care for the full 90 minutes:

Tribal Consultation seeking input on the ANPRM and potential changes to AFCARS will be held through two teleconference calls on the following dates and times.

Tuesday, May 15, 2018 @ 2:00 pm – 3:30 pm (EDT).

Please register here: https://acf.adobeconnect.com/efdd2gqe733x/event/registration.html

Wednesday, May 16, 2018 @ 2:00 pm – 3:30 pm (EDT)

Please register here: https://acf.adobeconnect.com/enhysqrbcyal/event/registration.html

For both consultations, the call-in number and passcode are: 877-917-3403, Passcode: 2498350. (Please note, if there are a small number of participants on the call, the call may end sooner than 3:30 p.m.)

Both Tribal consultation teleconference calls are open to all tribal leaders or their designees and may address any aspect of the ANPRM’s request for comments on AFCARS data collection, including data elements relating to ICWA that would reported by states and all other AFCARS elements that would be reported by both states and tribes operating title IV-E programs. Overall, we are interested to hear both recommendations on data elements to retain with a justification for using the data at the national level and recommendations on any data elements to remove because they may be either overly burdensome for title IV-E agencies to report or may not be reliable or necessary at the national level.

In addition to participating in the tribal consultation conference calls, the Children’s Bureau encourages tribal leaders to submit comments in writing in response to the ANPRM, as only written comments may be included in the regulatory record. The deadline for the receipt of written comments in response to the ANPRM is June 13, 2018.

There is also a briefing webinar:

The briefing webinar to learn more about AFCARS will be held on Wednesday, April 25, 2018 from 2:00 pm – 3:30 pm (EDT). If you are interested in participating in this webinar, please register at:

https://acf.adobeconnect.com/afcars/event/event_info.html

Because:

We recognize that while states have many years of experience in reporting AFCARS data, tribes may not be as familiar with AFCARS. To prepare for consultation, the Children’s Bureau is offering a briefing webinar for tribal leaders and/or members of your staff. The briefing webinar will be an opportunity for tribal leaders and members of your staff to learn more about AFCARS, including current data reported by states since the 1990’s and the changes to AFCARS that were promulgated in December 2016, but have not yet been implemented.

If only well over 60 tribes and tribal organizations had submitted comments in support of the additional data elements explaining in great detail why they are needed in the last comment collection on this issue in 2016 . . .

A non-tribal specific information session/briefing webinar earlier this month was problematic on ICWA (at best). There are a number of groups working on written comments, including model versions for tribes. When they are available, we will make sure to post that information. If you’d like to post comments now, here is the comments page.

Previous posts on AFCARS here.

Déjà vu All Over Again: AFCARS Comments Needed

Kate Fort

Here is the advanced notice of proposed rulemaking where HHS is reopening the FINAL RULE adopting new data elements on kids in foster care, including ones on ICWA.  Comments on how yes, really, we really do want ICWA data, just like we said the last two times are now due June 13.

Oh also, there’s another notice where HHS is proposing to delay implementation of the Final Rule for two more years. Those comments on that are due April 16.

 

Honestly, just reading the notices is infuriating–the Administration admits the final rule was the culmination of not one, but two separate notice and comment periods, plus a supplemental notice and comment period. This Administration, though, has identified this rule as one where the benefits might outweigh the costs. They have a few identified questions for comment, though it is pretty clear the Administration is seeking comments to support their contention the additional data elements would be too much work for agencies to collect.

I’m sure there will be additional posts on this in the near future.