Biden-Harris Administration Finalizes Rule to Strengthen Protections for Youth in the Child Welfare System

Final Rule Brings the Child Welfare System Closer to Better Supporting Youth with Resources and Services that Meet their Needs.

Today, the U.S. Department of Health and Human Services (HHS), through the Administration for Children and Families (ACF), finalized a policy that strengthens protections for youth in foster care by clarifying how states must meet their statutory requirements to appropriately serve LGBTQI+ children in foster care.

“Every child deserves a safe and loving home,” said HHS Secretary Xavier Becerra. “When any child comes into government care, they should have supports and services that meet their specific needs. By addressing the needs of LGBTQI+ children, this rule brings us one step closer to ensuring that all children have the opportunity to thrive.”

LGBTQI+ children are overrepresented in foster care and face significantly higher levels of bullying and harassment in care than other children. In addition, LGBTQI+ children who enter foster care experience significantly worse outcomes, including higher levels of mental health-related hospitalizations and homelessness. Like all children, LGBTQI+ young people deserve a placement that meets their unique needs. The rule advances the child welfare system toward the Administration’s goal of supporting all foster children with the resources and services they need.

This final rule makes clear that all children in the child welfare system, including LGBTQI+ children, are entitled to protections against harassment, abuse, and mistreatment, regardless of their placement. Additionally, this final rule specifies that as part of meeting the existing statutory requirement to provide safe and proper care for all children in foster care, state child welfare agencies must ensure that LGBTQI+ children have access to specially designated foster care 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.

HHS has concluded that requiring states and tribes to offer a designated placement for all LGBTQI+ children in foster care who request or would benefit from such a placement is necessary to effectuate the statutory promise of a safe and appropriate placement for children who are LGBTQI+. The rule also recognizes the critical role of kinship placements and states that services and training can be offered to current providers, including kin, to help them become a designated placement if they wish to do so. The rule will help promote placement stability and retain sibling, kinship, family, and community ties, consistent with the child’s best interest and provider’s wishes.

The final rule applies to state child welfare agencies and does not require any provider to become a designated placement. Rather, 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. Further, the rule specifies that nothing in the rule should be construed as requiring or authorizing 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. Finally, this rule expressly provides that, insofar as the application of any requirement under the rule would violate applicable federal protections for religious freedom, conscience, and free speech, such application shall not be required.

“At ACF, we know that young people succeed when they get the support they need,” said ACF Principal Deputy Assistant Secretary Jeff Hild. “This rule will give LGBTQI+ young people in foster care access to an environment where they can thrive.”

The final rule may be viewed or downloaded at: Federal Register: Public Inspection: Designated Placement Requirements for LGBTQI plus Children.